Exemptions and the Public Interest Test Louise Townsend - Masons.
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Transcript of Exemptions and the Public Interest Test Louise Townsend - Masons.
Exemptions and the Public Interest TestLouise Townsend - Masons
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Overview
Why are there exemptions? Absolute and Non-absolute exemptions Prejudice and class exemptions Public interest test
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Why are there exemptions?
Information available already e.g. Publication schemes, EIRS, DPA
Access to information prohibited e.g. By statute, contempt of court
To protect particular interests e.g. National security, law enforcement etc.
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Absolute and Non-Absolute Exemptions
Absolute - No public interest test, the exemption can be applied if the information fits within it.
Non-absolute – Application of the public interest test.
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Public interest test
“In all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.
= for information to be withheld, the public interest must be greatest in the interest protected by the exemption: the Act is designed to favour disclosure.
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Prejudice and Class Exemptions
Some exemptions refer to an interest being prejudiced or being likely to be prejudiced Not defined – a possibility of harm?
NB – substantial prejudice in Scotland
“real, actual and of significant substance”. Others are class exemptions
Designed to give protection to all information falling within a particular category.
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Exemptions
Information reasonably accessible to the applicant by other means (including on payment)
S21 – ABSOLUTE
Information intended for future publicationS22 – NON-ABSOLUTE
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Exemptions
Information supplied, or relating to, bodies dealing with security matters
S23 – ABSOLUTE
National securityS24 – NON-ABSOLUTE
NB - National security certificates
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Exemptions
DefenceS26 – NON-ABSOLUTE
International relationsS27 – NON-ABSOLUTE
Relations within the UKS28 – NON-ABSOLUTE
The economyS29 – NON-ABSOLUTE
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Exemptions
Investigations and proceedingsS30 – NON-ABSOLUTE
Law enforcementS31 – NON-ABSOLUTE
Court recordsS32 – ABSOLUTE
Audit functionsS33– NON-ABSOLUTE
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Exemptions
Parliamentary privilegeS34 – ABSOLUTE
Formulation of government policyS35 – NON-ABSOLUTE
Prejudice to effective conduct of public affairsS36 – ABSOLUTE (for information held by Parliament)
NON-ABSOLUTE (for other authorities)
Communications with Her Majesty & honoursS37 – NON-ABSOLUTE
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Exemptions
Health and safetyS38 – NON-ABSOLUTE
Environmental informationS39 – NON-ABSOLUTE
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Exemptions
Personal information About the applicant
The Data Protection Act 1998 applies (subject access provisions)
Definition of data extended to cover all data Amended subject access rules New subject access exemption for personnel data
S40 – ABSOLUTE
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Exemptions
Personal information about someone other than the applicant
FOIA applies Would disclosure breach the data protection
principles? (ABSOLUTE) Is there a subject access exemption? (NON-
ABSOLUTE) Has a section 10 DPA objection been lodged?
(NON-ABSOLUTE)
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Exemptions
Information provided in confidenceS41 – ABSOLUTE
Legal professional privilegeS42 – NON-ABSOLUTE
Commercial interestsS43 – NON-ABSOLUTE
Prohibitions on disclosureS44 – ABSOLUTE
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Public interest test
the public interest in disclosure must be considered in every case where a non-absolute exemption applies & for EIR disclosures
the public interest protected by the exemption will vary with each exemption
“in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.
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Public interest – common factors
Transparent and open decision making Accountability of decision makers Financial probity Absence of bias Integrity of judicial process Adherence to natural justice The general public interest in openness
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Public interest – specific factors
Health of the population and/or individuals Economic management Prosecution of offenders
- Factors must be considered on a case by case basis but a policy may be possible
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Public interest – not relevant
embarrassment to the authority/employee the applicant may misunderstand the
information incomplete information loss of confidence in the authority
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Summary
There are a number of exemptions which limit the extent of an authority’s duties
There are two types of exemption – absolute and non-absolute
Non-absolute exemptions require the public interest test to be applied
In most cases, even if an exemption applies, the authority will have to confirm or deny whether it holds the information
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Practical Issues
When creating or reviewing material, consider whether an exemption may be applicable.
Consider document templates Who will determine exemptions to ensure
consistency? Consider refusal process Complaints procedures Record keeping of requests and refusals How will the exemptions be applied?