Tag Archives: exemptions

Six questions to ask before you submit an FOI

David Higgerson suggests six questions that journalists can ask to improve the end results of a possible FOI request – or save you sending one entirely. they are:

  1. Is this information available elsewhere?
  2. Will they release the information to me without going through FOI?
  3. Is there another way of getting this information?
  4. Do I need to think about jargon in my FOI request?
  5. Are there examples of the information being released elsewhere?
  6. What reasons for refusal could a public body come up with?

It’s nice to see the post using an example from Help Me Investigate’s very early days – Heather Brooke’s FOI request to Birmingham City Council.

FOI: What is the Section 44 exemption and how can I address it?

The Freedom of Information Act (FOIA) includes a number of exemptions – or reasons – why a public body can withhold the information you’ve requested. The majority of these are open to interpretation or opinion, and so when they are used to refuse your application they can be challenged – with the ultimate decision resting with the Information Commissioner. It’s particularly useful to follow those decisions, because they can set precedents and be used as part of your request to pre-empt possible excuses.

Even if you can’t pull together a convincing argument that an exemption doesn’t apply, it can be overruled by a public interest test. This ultimately means that even if something is exempt, the information must still be disclosed unless the public interest in maintaining the exemption is greater than the public interest in disclosing it.

Twenty (or so) working days ago, I sent off a FOI request to a local authority, requesting information about a councillor who had been referred to the councils standards committee. The email I got back introduced me to a whole new exemption – one which seems to be the FOI equivalent of the blue screen of death.

Section 44 (S44) of the FOIA – or to use its more friendly title ‘Prohibitions on Disclosure‘ – deals with data which is controlled by other legislation or “obligation”.

The most important aspect of a S44 exemption, is that it’s absolute – which means there is no need for the public body to consider the public interest of the data.

In relation to my request, the council refused under section 44(1)(a) – ‘Where the disclosure of information is prohibited under any enactment’. As with all exemptions the public body should point you to the reason for the exemption, in this case, they pointed out the legislation that prevents the release of the information (Complaints referred to the Standards Committee Referrals Sub Committee are confidential by virtue of paragraphs 1 and 2 of Part 1 of Schedule 12A of the Local Government Act 1972).

The first step should be to consider your initial request against the legislation; is every aspect of your request covered by the legislation? Does the S44 exemption seem relevant to your request (has it been applied correctly?)

The next step is more complex, and requires more in-depth research into the specific legislation the public body are using S44:

  • Does it actually mean the data can’t be released?
  • Has it been made irrelevant by newer legislation or by European obligations/directives?
  • Are there any situations where the law does not apply? (With reference to my FOI request, the legislation doesn’t apply should the individual involved agree to the release of the data, or if the data has been legally released previously).

Depending on the nature/importance of the information, it may be worth getting some legal advice – the law, as it’s written is very complex, and can be difficult to research/interpret.

Another avenue to try is to search Decision Notices on the ICO’s website, to see if they have ruled on a similar request previously. (There currently is only one previous case where S44(1)(a) has come up – FS50168774.)

This should give you some idea if the ICO agrees with the public body’s application of the S44 exemption, and the grounds on which it decided.

S44 is a tough exemption, it is down to the requester to ensure it’s been applied correctly, and with reference to relevant legislation.

There is little scope to respond to a S44 denial, but I’m sure as time goes on we will see more cases where people manage to successfully do just that.

Of course the final option is to petition the Government to change the legislation involved. I await a response from Ken Clarke and will let you know how that goes.

Making FOI requests: pre-empting the ‘commercial interest’ excuse

Quite often Freedom of Information requests are refused on the grounds of ‘commercial interest’ – or specifically that “the commercial interests of a third party will, or are likely to, be prejudiced”. This might also be referred to as being refused “under Section 43 of the Freedom of Information Act”.

Note that this is separate – although similar to – “commercial confidentiality” which applies to information that has been provided to the public body by another company.

Sometimes the use of Section 43 will be justified. Where it is not, however, is when the public interest in disclosure overrides those commercial interests. And this is where it is useful to be proactive in your FOI request.

The Information Commissioner’s Office is very useful in explaining how public bodies must deal with your FOI request, and provides guidance on each of the exemptions.

If you expect that your request may be refused on the grounds of commercial interest, it’s worth addressing these up front as part of your request, after you have outlined the information that you require.

How to phrase your FOI request to address possible commercial interest objections

Typical phrasing might go as follows:

“Please note that Section 43 of the Freedom of Information Act states that any attempt to withhold information on the basis that it would prejudice commercial interests can be overruled if there is a public interest in releasing that information”

You can then further strengthen your request by specifying how the release of this information does indeed overrule commercial interests on the basis that it will do one or more of the following, which are specifically outlined in guidance by the Information Commissioner’s Office (PDF):
  • further the understanding of, and participation in the debate of issues of the day; 
  • facilitate the accountability and transparency of public authorities for decisions taken by them; 
  • facilitate accountability and transparency in the spending of public money; 
  • allow individuals to understand decisions made by public authorities affecting their lives and, in some cases, assist individuals in challenging those decisions; 
  • bring to light information affecting public safety

Typical phrasing, then, might go something like this:

“This information clearly qualifies as being within the public interest as defined by the Information Commissioner’s Office (Awareness Guidance No.5) on the basis that it “furthers the understanding of, and participation in the debate of issues of the day”; “facilitates the accountability and transparency of public authorities for decisions taken by them”; and “facilitates accountability and transparency in the spending of public money.”

This public interest test will probably also help you focus on what information you should ask for.

Some other notes:

“The price submitted by a contractor is likely to be commercially sensitive during the tendering process, but less likely to be so once the contract has been awarded.” 

“Where a company enjoys a monopoly over the provision of the goods or services in question it is less likely that releasing the information will have a prejudicial impact on that company.” (guidance by the Information Commissioner’s Office (PDF))

The public body cannot make any presumptions on the commercial interests of the company, but should ask the company to make its own case if it wants information to be withheld. This cannot be used as an excuse for delaying a response: “Failure to respond by those being consulted does not remove the obligation [for the public body] to respond within [the 20 day] time limit.” 

It should also be noted that the public body also does not have to adhere to the wishes of the company. Any case put forward by the company for withholding information is only that: a case. If that case is overruled by the public interest in disclosure, then the public body can still – and should – release the information.