Exemptions

Exemptions have always been contentious. FOI Man provides a glimpse behind the scenes of how the decision to apply them is taken.

Back in the early noughties, when I was nought but an FOI Boy, the BBC showed a drama featuring Matthew Macfadyen as a young left wing activist gradually becoming disillusioned by the Labour Government’s attempts to water down their Freedom of Information Bill. MM does a fine line in moody young men, and he was particularly cross about the number of exemptions in the finished Act.

Exemptions have remained a contentious issue ever since. My own view is that MM was unduly concerned. Whilst there may be a large number of exemptions in the Act, experience has shown that there are also pretty strong checks and balances on their use. But more on those later.

Most requests result in full disclosure. You might not believe that if you read most commentary about FOI, but the statistics across the public sector bear me out (as I’ve discussed in a previous post). Some requests are too broad and require clarification, or are refused on cost grounds. But a minority are refused and an exemption (or exception under EIR) cited.

In my experience, it is rarely the FOI Officer who decides whether information should be withheld. Normally it is someone in the department that holds the information who suggests that there might be a problem with disclosure, and the ultimate decision to use an exemption will usually be a senior officer’s. The FOI Officer’s role is to advise whether information can be withheld where concerns are raised, and if so to ensure that the case for using the exemption is robust, by gathering evidence, and that statutory requirements, such as providing a meaningful refusal notice, are met.

The exception may be where an FOI Officer is familiar enough with the information requested to know that there may be problems with disclosure. Or, for example, as FOI Officers are often also responsible for Data Protection compliance, when information contains personal data relating to third parties. And on occasion, we may be aware from other sources (eg email discussion lists, other FOI Officers dealing with the same request, etc.) that we might need to consider using an exemption. But I’m always at pains to make clear to colleagues that it is their responsibility to highlight material that shouldn’t be released.

But they don’t need to know about exemptions. When we were preparing for FOI coming fully into force on 1 January 2005, our training courses for colleagues tended to dwell excessively on examinations of the various exemptions available. It only dawned on me later that this wasn’t necessary – and in fact became a hindrance because as we all know, “a little bit of knowledge is a dangerous thing”.  So nowadays if I’m training colleagues or advising them on answering a request, I focus on the key message – consider the harm of disclosure. If they can explain to me what the harm would be, I can then decide if an exemption can be justified.

The sorts of exemption that apply are obviously different from one part of the public sector to another. Central Government departments in particular are going to be most uneasy about policy matters and requests for information relating to ministers. The police are of course going to hold a lot of information that relates to law enforcement and that will be reflected in the kinds of exemption that they use. Other organisations may hardly use anything except the exemption for personal data. So very few, if any, FOI Officers will have used all of the exemptions available – usually they will know about a small sub-set that is relevant to their organisation. It’s a cause of some excitement when we get to use a new one! (or maybe that’s just me…)

Third party data is a particularly tricky problem. Much information held by public authorities was given to them by, or relates to, other organisations or individuals. This could include businesses providing them with services or tendering for contracts, individuals responding to a consultation, even other public bodies that the authority is working with. The Section 45 Code of Practice makes it clear that public bodies should consult third parties when they are considering disclosing data relating to them. But equally it is clear that it is the duty of the public body in receipt of a request to decide whether or not to disclose information. If the third party doesn’t want you to disclose information it can cause a great deal of grief, especially when they have a limited understanding of the obligations that public authorities are under.

FOI Officers and other staff dealing with requests can sometimes find themselves put under a lot of pressure to withhold information. Often they can see the case for the exemption and are happy to make it. On other occasions, they may well argue hard in favour of disclosure with varying results (one of the most common being a funny look from colleagues who are now convinced that they’re not a team player). Sometimes they end up having to make the case for an exemption that they disagree with.

This is not easy, especially if it is appealed as far as the Information Commissioner. One of the trickiest exchanges I had with a case officer from the ICO related to information provided by a very powerful third party. My organisation was under pressure not to disclose that information, and in truth we wanted the ICO to order us to disclose so that we could show that we’d done all we could. But I couldn’t tell the ICO that and they wouldn’t make a decision without more information from us as to how the exemption applied. So for a while we were at stalemate (and the poor requester was still waiting).

At least nowadays, there is plenty of case law to go on. Back in 2005, we were making it up as we went along, and it’s no surprise to me that a backlog built up very quickly at the ICO. Once that case law started to become available, and the ICO’s guidance adjusted as a result, we were able to make decisions on exemptions from a more informed standpoint.

There are two aspects of the Freedom of Information Act as passed which mean that Matthew Macfadyen’s character can sleep easy in his bed at night. Neither thing, bizarrely enough, was in the original Freedom of Information Bill at its First Reading. They were both introduced during Committee Stage – so Tony Blair didn’t have it all his own way. One is the power of the Information Commissioner to order disclosure (as opposed to just ‘advising’) and the other is the public interest test for most exemptions. In a further post I’m going to talk about how we apply the public interest test and why I think it is so important.