Tag Archives: section 44

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.