Freedom of Information Exemptions

The Freedom of Information Act contains exemptions to the right of access in order to protect legitimate interests and sensitivities.

Some of these exemptions are absolute. Others are subject to a public interest test and are known as 'qualified'. Exemptions are often referred to by the section number of the FOI Act which contains them.

Section 21 - Information Accessible by Other Means

This exemption recognises that the right of access under the Freedom of Information Act 2000 is supplementary to the very many ways in which public authorities already provide information to the public.

For example, section 21 will apply if information is included on a public authority's publication scheme or if the public authority is under a statutory obligation to give out the information to members of the public on request.

Of course, this exemption doesn't mean that you cannot have the information you have requested - just that it will not be provided under the FOI Act.

Section 21 is an absolute exemption - there is no public interest test.

Section 22 - Information Intended for Future Publication

This exemption may apply if the public authority intends to publish the requested information at some future date. This ensures that the FOI Act does not force public authorities into premature publication of information.

This exemption is public interest tested.

Section 23 - Information Supplied by or relating to Bodies dealing with Security Matters

This exemption applies to two categories of information:

• Information supplied directly or indirectly by the Security Service bodies (this includes the Security Service, the Secret Intelligence Service and GCHQ as well as others). Whether this aspect of section 23 applies in a particular case will turn on the source of the information; and
• Information that relates to one of the Security Bodies. The application of this part of section 23 will turn on the content of the information.

This exemption is absolute - there is no public interest test.

Section 24 - National Security

This exemption applies to information whose exemption from the right of access is required for the purpose of safeguarding national security. In order to apply this exemption, the public authority must decide whether any harm to national security might result from its disclosure.

This exemption is public interest tested.

Section 26 - Defence

This exemption applies to information whose disclosure would be likely to prejudice:

• The defence of the British Islands or any colony; or
• The capability, effectiveness or security of the armed forces of the Crown or any forces co-operating with them.
  In order to determine whether this exemption applies the public authority must establish how exactly these defence matters would be prejudiced by disclosure of the information.

This exemption is public interest tested.

Section 27 - International Relations

This exemption applies to the following two categories of information:

• Information whose disclosure would be likely to prejudice international relations. (The term "international relations" means relations between the UK and any other state, international organisation or court, or the interests of the UK abroad or the promotion or protection of those interests.)
• Confidential information obtained from another state, an international organisation or an international court.

This exemption is public interest tested.

Section 28 - Relations within the United Kingdom

This exemption applies to information whose disclosure would be likely to prejudice relations between two or more administrations in the United Kingdom . The relevant administrations are: the government of the United Kingdom , the Scottish Administration, the Executive Committee of the Northern Ireland Assembly and the National Assembly for Wales .

This exemption is public interest tested.

Section 29 - The Economy

This exemption applies to information whose disclosure would be likely to prejudice the economic or financial interests of the United Kingdom or of any administration in the United Kingdom .

This exemption is public interest tested.

Section 30 - Investigations and Proceedings conducted by Public Authorities

This exemption is concerned primarily with preserving the integrity of certain proceedings and investigations which public authorities have the power or duty to conduct. There are two ways in which the application of this exemption may be triggered:

• Where information has at any time been held for the purpose of specified criminal and other investigations or proceedings; and
• Where information relates to the obtaining of information from confidential sources and was obtained or recorded for a number of specified investigations or proceedings.

This exemption is public interest tested.

Section 31 - Law Enforcement

This exemption is concerned with protecting a wide range of law enforcement interests and its application turns on whether disclosure would be likely to prejudice those interests.

Some interests that are protected by section 31 are drawn quite widely, for example: the administration of justice, the prevention or detection of crime and the operation of immigration controls. But the exemption also applies where the exercise by any public authority of certain specified functions would be prejudiced by disclosure. Those functions include: ascertaining whether a person is responsible for improper conduct, determining the cause of an accident and ascertaining a person's fitness to carry on a profession.

This exemption is public interest tested.

Section 32 - Court Records

This section exempts information contained in certain litigation documents and court, tribunal and inquiry records. It will apply regardless of the content of the information. There are separate and specific regimes for gaining access to court and tribunal records and this exemption ensures that those regimes are not superseded by the FOI Act.

This exemption is absolute - there is no public interest test.

Section 33 - Audit Functions

Section 33 can only be used by public authorities which have financial audit functions in relation other public authorities or whose functions include examining the efficiency, effectiveness and economy with which other public authorities discharge their functions. This exemption applies to information whose disclosure would be likely to prejudice the exercise of these functions.

This exemption is public interest tested.

Section 34 - Parliamentary Privilege

Section 34 applies to information whose exemption is required in order to avoid an infringement of the privileges of either House of Parliament. The purpose of this exemption is to preserve Parliamentary privilege and protect the position of Parliament.

This exemption is absolute - there is no public interest test.

Section 35 - Formulation of Government Policy

This exemption is aimed at protecting the government policy-making process and its proper use is essential to ensuring the delivery of effective government. It applies to information which relates to :

• The formulation and development of government policy;
• Communications between Ministers (including Cabinet proceedings);
• The provision of advice by the Law Officers (or any request for advice); and
• The operation of any Ministerial private office.

This exemption is public interest tested.

Section 36 - Conduct of Public Affairs

This section exempts information whose disclosure would be likely to have any the following effects:

• Prejudice collective Cabinet responsibility;
• Inhibit the free and frank provision of advice and exchange of views for the purposes of deliberation; or
• Prejudice the effective conduct of public affairs.

This exemption can only be used if the section 35 exemption does not apply. It can also only be used if a 'qualified person' thinks that the disclosure would have the specified effects. In most cases, the qualified person for a public authority is the most senior person in that organisation.

This exemption is public interest tested.

Section 37 - Communications with Her Majesty and Honours

Section 37 applies to two categories of information:

• Information relating to communications with Her Majesty, other members of the Royal Family or the Royal Household; and
• Information relating to the conferring by the Crown of any honour or dignity.

This exemption is public interest tested.

Section 38 - Health and Safety

This section applies to information whose disclosure would be likely to endanger the physical or mental health or the safety of any individual.

This exemption is public interest tested.

Section 39 - Environmental Information

This section exempts environmental information whose disclosure is governed by the Environmental Information Regulations 2004 (EIRs). The EIRs implement a European Directive and establish a specific regime to enable individuals to access environmental information, including exemptions from that right of access. The disclosure of environmental information must be considered under the Environmental Information Regulations: this section therefore exempts this from the rights of access under the FOI Act.

The exemption is public interest tested.

Section 40 - Personal Information

This exemption concerns personal data within the meaning of the Data Protection Act 1998 . Section 40 applies to two distinct types of requests for information:

• If you ask for your own personal data, the information is exempt (but the request will be handled under the Data Protection Act instead); and
• If you ask for someone else's personal data, then that information will be exempt if its disclosure would contravene any of the data protection principles in the Data Protection Act 1998 (or certain other provisions of the Data Protection Act 1998).

This exemption is absolute - there is no public interest test.

Section 41 - Information Provided in Confidence

This exemption applies to information that has been obtained from another person and whose disclosure to the public would constitute an actionable breach of confidence. (I.e. the person who supplied the information to the public authority could take legal action against the public authority if the public authority disclosed it to anyone else.)

This exemption is absolute - there is no public interest test.

Section 42 - Legal Professional Privilege

This exemption applies to information that would be subject to legal professional privilege if litigation were in progress. Legal professional privilege covers confidential communications between lawyers and their clients, and certain other information that is created for the purposes of litigation. This exemption ensures that the confidential relationship between lawyer and client is protected.

This exemption is public interest tested.

Section 43 - Commercial Interests

This section exempts information whose disclosure would be likely to prejudice the commercial interests of any person. It also includes a specific exemption for trade secrets.

This exemption is public interest tested.

Section 44 - Prohibitions on Disclosure

This exemption applies to three distinct categories of information:

• If there is an existing statutory prohibition on the disclosure of information by a public authority then that information will be exempt;
• If disclosure would be incompatible with a European Community obligation then the information will be exempt; and
• If disclosure would constitute or be punishable as a contempt of court at common law (for example because it would breach a court order) then it will be exempt.

This exemption is absolute - there is no public interest test.