The Exemption Index – FOI Section 27

FOIMan rummages through the diplomatic bag to find out how the FOI Act seeks to avoid international incidents.

Summary

Ambassador, you’re spoiling us.

Diplomacy is an essential part of maintaining the UK’s place in the world. It is easy to see why the government would be concerned about the possibility that FOI disclosures might cause offence to foreign powers.

However, at the time that FOI was coming into force, the UK’s international relations were under more scrutiny than ever as a result of the recent controversial invasion and ongoing occupation of Iraq. Many of the early decisions involving this exemption related to this significant event.

In my time as an FOI Officer, I used this exemption to protect information relating to the London Olympics – the exemption covers relations with international organisations such as the IOC. On another occasion, it was cited to avoid offence to the Chinese government – in relation to attempts to bring pandas to London Zoo. It can be relevant to situations such as establishing and maintaining twinning relationships between towns and cities in the UK and those abroad, as much as it can be to major international conferences and treaties.

Information affected

Any information which if disclosed would or would be likely to prejudice relations between the UK and any other State; international organisation or court; the interests of the UK abroad; the promotion or protection of the UK’s interests abroad. Also confidential information obtained from another State, international organisation or court.

Things that FOI Officers need to know

The prejudice claimed must be to the UK, rather than the public authority itself says the ICO.
Confidential information from another State remains confidential for as long as the terms on which it was obtained require it to remain confidential, or while the circumstances in which it was obtained make it reasonable for the originator to expect it to remain confidential. There is no requirement that an actionable breach must occur (as with section 41).
In effect, s.27(2) – confidential information obtained from another State – is a class exemption – if it is confidential, the exemption applies (para 66 of linked decision).
The importance of the issue is not necessarily important, it is the impact on international relations that is relevant – after all, we know that very trivial matters can often cause major disagreements.
The fact that information is critical of another State is not enough to justify withholding it; it is how the State is likely to react that is relevant (Wadham, p.122).
The culture of another State can be taken into account – for example, the expectations of the Kingdom of Saudi Arabia are likely to be different than the United States government (para 65 of linked decision).
When seeking the views of other States, it is advisable to avoid leading questions (para 71 of linked decision).
There’s an inherent public interest in avoiding the loss of “international confidence” (para 95).

Things that requesters need to know

The exemption is subject to a public interest test, so even if the authority can demonstrate that harm will be caused by disclosure, they will need to show why it is in the public interest to withhold the information.
Public interest arguments in favour of disclosure include: there is evidence of wrongdoing or corruption; the issue is no longer live (para 119 of linked decision); could help public understand current issues better and inform their input (para 119 of linked decision).

Essential case law

Campaign Against the Arms Trade v IC & Ministry of Defence (EA/2007/0040), 26 August 2008

Gilby v IC and Foreign and Commonwealth Office (EA/2007/0007, 0071, 0079), 22 October 2008

All Party Parliamentary Group on Extraordinary Rendition v IC & Ministry of Defence [2011] UKUT 153 (AAC), April 2011