Part II: Exempt information
85.Part II of the Act sets out the cases in which information is “exempt information”. Some provisions are class based; that is if the information is of the type described, an exemption can be claimed. Others refer to the harmful consequences of disclosure.
Section 21: Information accessible to public by other means
86.Section 21 exempts information if it is reasonably accessible to the applicant by other means. This provision confers absolute exemption for the purposes of section 2. Information may be exempt by virtue of this provision even though it is available only on payment. Information available by virtue of other legislation (other than information which is required to be available for inspection) is deemed to be reasonably accessible to the applicant and therefore exempt. Information which is available for inspection, whether voluntarily or under another enactment, will only be exempt by virtue of this section if it is in fact reasonably accessible to the applicant. Examples of the type of information covered by this exemption include: books and pamphlets published by an authority, or birth, marriage and death certificates available under other legislation.
87.The section does not apply simply because the information is available from the public authority itself on request (other than information which the authority is obliged by or under any enactment to make available), unless it is made available in accordance with the authority’s publication scheme and any payment required is specified in or determined in accordance with that scheme.
Section 22: Information intended for future publication
88.This section exempts information which is intended to be published, where it is reasonable that the information should not be disclosed until the intended date of publication. Examples of the type of information covered by this exemption include information relating to research projects which it would be inappropriate to publish until the project had been completed, or statistical information which is usually published to a specific timetable (annually, quarterly etc). This exemption is related to the duty to adopt a publication scheme (section 19). Where a publication scheme states that an authority will publish information on specified dates or at specified intervals the authority would normally be able to rely on this exemption in relation to particular requests for such information.
89.Subsection (2) provides that the duty under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, itself, disclose information which it is reasonable to withhold until the publication date. This might apply where, for example, to be told that information relating to amendments to taxation is held would reveal that tax rates are to be amended, and therefore it would be reasonable for an authority neither to confirm nor deny that such information is held pending publication of the relevant policy proposals or decisions.
Section 23: Information supplied by, or relating to, bodies dealing with security matters
90.Section 23(1) exempts, as a class, all information directly or indirectly supplied by, or relating to certain bodies dealing with security matters. This provision confers absolute exemption for the purposes of section 2.
91.Subsection (2) provides that a certificate signed by a Minister of the Crown is conclusive proof that the information is of the type in question, subject to a right of appeal to the Information Tribunal under section 60.
92.Subsections (3) and (4) set out the bodies concerned.
93.Subsection (5) provides that the obligation under section 1(1)(a) to confirm or deny whether or not the authority holds the information does not arise if to comply would itself disclose information which is exempt by virtue of subsection (1).
Section 24: National security
94.Section 24 exempts information not covered by section 23, where an exemption is required to safeguard national security. A certification process is provided which is similar to that in section 23.
95.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny whether the requested information is held does not arise where such an exemption is required in order to safeguard national security.
96.Subsection (4) allows a certificate to describe information by means of a general description. A certificate may apply to information existing at the time the certificate is issued or it may also cover information acquired or recorded at a later date.
Section 25: Certificates under ss 23 and 24: supplementary provisions
97.Section 25 makes supplementary provision to the certification process under sections 23 and 24, for evidential purposes. It restricts the power to sign a certificate to a Cabinet Minister, the Attorney General, the Attorney General for Northern Ireland or the Advocate General for Scotland.
Section 26: Defence
98.Section 26 exempts information the disclosure of which would, or would be likely to, prejudice the defence of the British Islands or any colony or the capability, effectiveness or security of the armed forces.
99.The expression “the British Islands” is defined in Schedule 1 to the Interpretation Act 1978 as meaning the United Kingdom, the Channel Islands and the Isle of Man. The expression “colony” is also defined in that Schedule.
100.Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) where to comply would, or would be likely to, result in the harm set out in relation to defence.
Section 27: International relations
101.Subsection (1) exempts information the disclosure of which would, or would be likely to, prejudice relations between the United Kingdom and any other State or international organisation, or international court, the interests of the United Kingdom abroad, or the promotion or protection by the United Kingdom of those interests. The definition of “State” includes the Government of any State and any organ of such government.
102.Subsection (2) exempts confidential information obtained from a State or international organisation or international court. Subsection (3) sets out what is meant by “confidential” for this purpose.
103.Subsection (4) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) or (2) if to comply:
would, or would be likely to, result in the harm set out in relation to international relations; or
would itself involve the disclosure of confidential information (whether recorded or not) obtained from another State or international organisation.
Section 28: Relations within the United Kingdom
104.This section exempts information which would, or would be likely to, prejudice relations between any two administrations in the United Kingdom (as defined in subsection (2)).
105.Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, result in harm of the kind described.
Section 29: The economy
106.This section exempts information the disclosure of which would, or would be likely to, prejudice the economic interests of the United Kingdom or the financial interests of any administration in the United Kingdom, (which would include, for example, budgetary interests).
107.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, prejudice the interests mentioned in subsection (1).
Section 30: Investigations and proceedings conducted by public authorities
108.Subsection (1) exempts, as a class, any information held at any time by a public authority for the purposes of a criminal investigation or criminal proceedings conducted by it.
109.Subsection (2) additionally exempts, as a class, information relating to the obtaining of information from confidential sources (informers) if it was obtained or recorded for the purposes of the authority’s functions relating to:
criminal investigations;
criminal proceedings;
the investigations referred to in section 31;
civil proceedings which arise from such investigations.
110.Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsections (1) or (2).
111.Subsection (4) treats proceedings instituted or conducted by certain connected persons as being instituted or conducted by the public authority.
112.Subsection (5) provides that ‘criminal proceedings’ includes certain court-martial and disciplinary proceedings, and proceedings before a Courts-Martial Appeal Court and summary appeal courts and a Standing Civilian Court; corresponding provision is made in relation to ‘offence’.
113.Subsection (6) modifies this section in its application to Scotland, so as to take account of the different criminal procedure in Scotland.
Section 31: Law enforcement
114.Subsection (1)(a) to (f) exempts information the disclosure of which would, or would be likely to, prejudice certain specified law enforcement matters. Subsection (1)(g) exempts information which would, or would be likely to, prejudice the exercise by any public authority of its functions for any of the purposes specified in subsection (2). This subsection essentially protects the conduct of investigations and proceedings which may lead to prosecutions. Subsection (1)(h) exempts information which would, or would be likely to, prejudice civil proceedings brought by an authority arising out of investigations conducted for the purposes set out in subsection (2). Subsection (1)(i) exempts information which would, or would be likely to, prejudice any inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 arising out of an investigation conducted for the purpose set out in subsection (2).
115.Subsection (2) sets out the purposes referred to in subsections (1)(g), (h) and (i). These include:
investigations into whether circumstances exist or may arise justifying regulatory action under any enactment;
regulatory investigations relating to unfitness or incompetence of company directors;
investigation of persons in regulated professions or who carry out activities which require a licence;
investigations into accidents;
action relating to charity management;
action relating to health and safety.
116.Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) and to comply would, or would be likely to, prejudice any of the law enforcement matters referred to in this section.
Section 32: Court records, etc
117.This exempts, as a class, information contained in specified records. The obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to such information. This provision confers absolute exemption for the purposes of section 2.
118.This section exempts information which is held by a public authority solely by virtue of the fact that it is contained in documents:
filed with, or placed in the custody of, a court, or
served upon, or by, the public authority for the purposes of such proceedings, or
which a court has created for the purpose of such proceedings (for example, bench memoranda).
119.Subsection (2) of this section extends the exemption to information recorded or obtained by a public authority for the purposes of its functions relating to statutory inquiries (including those to which the Tribunals of Inquiry (Evidence) Act 1921 applies) and to arbitrations. In either case, evidence could be given to the inquiry or arbitration by third parties and the inquiry could create documents of its own. A public authority could find itself holding this information either because it was a party or because inquiry papers were held by it.
120.Subsection (4) contains a definition of “court” which is the same as that in section 19 of the Contempt of Court Act 1981, thereby bringing in tribunals and other bodies exercising the judicial powers of the State. This section also applies to the judicial functions of coroners and documents relating to any particular inquest or post-mortem examination.
121.This section does not apply to information which a public authority holds otherwise than in the documents specified, even though the information may relate to, and be deployed in connection with, particular proceedings.
Section 33: Audit functions
122.Subsections (1) and (2) of this section exempt the disclosure of information which would, or would be likely to, prejudice the exercise by any public authority of its auditing functions. The section relates to the audit of the accounts of other public authorities, or examinations into the efficiency, economy and effectiveness with which they use their resources to discharge their public functions. The section would not extend to the internal auditing functions of authorities.
123.Subsection (3) provides that the duty to confirm or deny does not arise if compliance with section 1(1)(a) would prejudice the authority’s auditing functions.
Section 34: Parliamentary privilege
124.This section exempts information if this is required for the purpose of avoiding an infringement of the privileges of either House of Parliament. Subsection (2) provides that the duty to confirm or deny does not apply insofar as that exemption is required for the purpose of avoiding an infringement of the privileges of either House.
125.Subsections (3) and (4) make provision for the Speaker of the House of Commons, in relation to that House, and the Clerk of the Parliaments, in relation to the House of Lords, to sign certificates as conclusive evidence that the exemption applies.
Section 35: Formulation of Government policy etc.
126.Subsection (1) provides that information held by a government department or by the National Assembly for Wales is exempt, as a class, if it relates to the formulation or development of government policy, ministerial communications, Law Officers’ advice or the operation of a Ministerial private office.
127.Subsection (2) provides that once a decision as to government policy has been taken, any statistical information used to provide an informed background to that decision cannot be exempt information by virtue of subsection (1)(a) or (1)(b). Such statistical information could be exempt under section 36.
128.Subsection (3) provides that the duty to confirm or deny does not arise in relation to information which is exempt by virtue of subsection (1).
129.Subsection (4) requires that a public authority must have regard to the particular public interest, when making any determination under section 2 in relation to information exempt by virtue of subsection (1)(a), in the disclosure of factual information which has, or is intended to be used, to provide an informed background to decision taking.
130.Subsection (5) clarifies that "government policy" includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the National Assembly for Wales and defines “the Law Officers”, “Ministerial communications” and “Ministerial private office” for the purposes of this section.
Section 36: Prejudice to effective conduct of public affairs
131.This section relates to information held by government departments which is not exempt by virtue of section 35 and information held by other public authorities. Subsection (2) provides that information is exempt if, in the reasonable opinion of a qualified person, its disclosure:
would, or would be likely to, prejudice the maintenance of the convention of collective ministerial responsibility,
would, or would be likely to, prejudice the work of the Executive Committee of the Northern Ireland Assembly or the National Assembly for Wales,
would, or would be likely to, inhibit the free and frank provision of advice or exchange of views, or
would otherwise prejudice, or would be likely to otherwise prejudice, the effective conduct of public affairs.
132.Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (2) if, in the reasonable opinion of a qualified person, compliance would, or would be likely to, have any of the adverse effects referred to.
133.Subsection (4) provides that in the case of statistical information, the test is the same as in subsections (2) and (3) but is a simple prejudice test (that is, the reasonable opinion of a qualified person does not apply to statistical information).
134.Subsection (5) defines a “qualified person”.
135.Subsection (7) provides that a certificate signed by the Speaker of the House of Commons, in relation to that House, or the Clerk of the Parliaments, in relation to the House of Lords, and stating that in his reasonable opinion, disclosure of information held by either House, or compliance with section 1(1)(a), would have the effects mentioned in subsection (2), is to be conclusive evidence that the exemption applies.
Section 37: Communications with Her Majesty, etc. and honours
136.Subsection (1) exempts as a class, all information relating to the award of any honour or dignity by the Crown or to any communications with the Royal Family or Household.
137.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) or would be if the information existed.
Section 38: Health and safety
138.Subsection (1) exempts information the disclosure of which would, or would be likely to, endanger the physical or mental health or safety of any individual.
139.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, result in the harm described.
Section 39: Environmental information
140.This section exempts environmental information, which is to be made available under the regulations made under section 74 of the Act.
141.Subsection (1) provides that such information is exempt if the public authority is obliged to release the information requested in accordance with the regulations or would be so obliged but for an exemption under the regulations.
142.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1).
143.Subsection (3) makes it clear that the inclusion of a specific exemption for environmental information available under the regulations does not limit the width of the general exemption contained in section 21(1) (information available by other means).
Section 40: Personal information
144.Subsection (1) exempts, as a class, personal information relating to the applicant for the information. The right to know whether this information is held, and if so to have access to it, is covered instead by the provisions of the Data Protection Act 1998 (as amended by Part VII of the Act). This provision, in relation to such information, confers absolute exemption for the purposes of section 2.
145.Where the information is personal information relating to a third party (that is, someone other than the applicant), it is exempt under subsection (2) if its disclosure would contravene the Data Protection Act 1998 or if the person to whom it relates would not have a right to know about it or a right of access to it under that Act (because of its exemption provisions). Personal information to which the relevant provisions of that Act do not apply is treated for these purposes as if they did. The 1998 Act prohibits the disclosure of personal information where, for example, it would be unfair, or incompatible with the purpose for which it was obtained, or where the individual who was the subject of the information had properly served notice that disclosure would cause unwarranted substantial damage or distress. This provision confers absolute exemption for the purposes of section 2 where disclosure would contravene any of the data protection principles, disregarding section 33A(1) of the DPA 1998 (which contains exemptions from the principles for manual data held by public authorities).
Section 41: Information provided in confidence
146.Section 41 exempts, as a class, information obtained from any other person if its disclosure would constitute a breach of confidence actionable by that or any other person. This provision confers absolute exemption for the purposes of section 2. A duty of confidence may be created by contract, or may arise from the circumstances. The common law of confidence itself provides that in certain circumstances a duty of confidence does not arise having regard to the public interest.
147.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.
Section 42: Legal professional privilege
148.Section 42 exempts, as a class, information to which legal professional privilege applies.
149.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would involve the disclosure of any information in respect of which such a claim could be maintained in legal proceedings.
Section 43: Commercial interests
150.Subsection (1) exempts information if it constitutes a trade secret.
151.Subsection (2) exempts information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person – including those of the public authority holding the information.
152.Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if, or to the extent that, compliance would, or would be likely to, prejudice commercial interests.
Section 44: Prohibitions on disclosure
153.Section 44 exempts all information where disclosure:
is prohibited by or under any enactment;
is incompatible with any European Community obligation; or
would constitute or be punishable as a contempt of court.
(Section 75, enabling statutory prohibitions to be modified by order, is intended to complement this provision.) This provision confers absolute exemption for the purposes of section 2.
154.Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) where compliance would itself (apart from the Act) be prohibited by or under any enactment or is incompatible with any European Community obligation or would constitute or be punishable as a contempt of court.
