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Exemptions and exceptions reasons to refuse

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Posted by Christine Jackson on 15 September 2014

Christine Jackson - Commercial Contracts Solicitor
Christine Jackson Partner

Freedom of Information Act 2000 (FOI) - Environmental Information Regulations 2004 (EIR)

Exemptions & exceptions

If you are a public authority subject to FOI and EIR, there are a number of grounds to withhold information from disclosure. These are called Exemptions under FOI and Exceptions under EIR. They may apply for example, where the information may compromise security arrangements or be commercially sensitive. 

There are different types of exemptions/exceptions.

Some FOI exemptions are "Absolute", others are "Qualified".

  • Absolute exemptions are those that apply where you do not need to consider the public interest (something in the public's benefit) when disclosing.
  • Qualified exemptions are where the public authority is required to consider whether the public interest is greater in withholding (not disclosing) information than in disclosing it.
  • Remember-All EIR exceptions are Qualified! 

Both pieces of legislation also contain certain reasons for refusal of requests. These are not exemptions as such, but if certain conditions have not been met, a request need not be be proceeded with. 

Freedom of information

Reasons for refusal

  • Section 1(1) Information not held
  • Section 1 (3) Clarification sought from requester
  • Section 8 (1) Request must contain name of requester, and address for correspondence and describe the information requested
  • Section 8 (2) Request for information must be legible and capable of being used for subsequent reference
  • Section 11 (3) Not reasonably practicable to comply with any preference expressed by the requester in making their request
  • Section 12 Cost of compliance
  • Section 13 Fees notice issued
  • Section 14 (1) Vexatious requests
  • Section 14 (2) Repeated requests

Exemptions

  • Section 21 Information Accessible by other means
  • Section 22 Information Intended for Future Publication
  • Section 23 Information supplied by the Security Services
  • Section 24 National Security
  • Section 26 Defence
  • Section 27 International Relations
  • Section 28 Relations Within the United Kingdom
  • Section 29 The Economy
  • Section 30 Investigations and Proceedings Conducted by Public Authorities
  • Section 31 Law Enforcement
  • Section 32 Court Records
  • Section 33 Audit Functions
  • Section 34 Parliamentary Privilege
  • Section 35 Formulation of Government Policy, etc
  • Section 36 Prejudice to Effective Conduct of Public Affairs 
  • Section 37 Communications with Her Majesty, etc Honours
  • Section 38 Health and Safety
  • Section 39 Environmental Information 
  • Section 40(1) Personal Data of the requester
  • Section 40 (2) Personal Data whose disclosure would breach DPA principles
  • Section 41 Information Provided in Confidence
  • Section 42 Legal Professional Privilege
  • Section 43 (1) Trade secrets
  • Section 43(2) Commercial interests
  • Section 44 (1) (a) Statutory prohibitions on disclosure
  • Section 44 (1) (b) Disclosure incompatible with any Community obligation
  • Section 44 (1) (c) Disclosure would constitute or be punishable as a contempt of court

Environmental information

Reasons for refusal

  • Regulation 6 (1) (a) it is reasonable to make information available in another form or format  
  • Regulation 6 (1) (b) Information already publicly-available in another form and format
  • Regulation 7 (1) Extension of time
  • Regulation 8 Charging
  • Regulation 9 Advice and Assistance
  • Regulation 10 Transfer of request

Exceptions

  • Regulation 12 (4) (a) The information requested is not held by the Authority at time of request
  • Regulation 12 (4) (b) The request is manifestly unreasonable
  • Regulation 12 (4) (c) The request is too general;
  • Regulation 12 (4) (d) Request relates to unfinished documents
  • Regulation 12 (4) e) The request concerns internal communications;
  • Regulation 12 (5) Disclosure would adversely affect:
    • (a) International relations, public security or national defence;
    • (b) The course of justice, the ability of any person to receive a fair trail or the ability of the Authority to receive a fair trial; 
    • (c) Intellectual property rights;
    • (d) Confidentiality of the Authority's proceedings when covered by law;
    • (e) Confidentiality of commercial or industrial info, when protected by law to protect legitimate economic interest 
    • (f) The interests or protection of any person who supplied the information requested on a voluntary basis;
    • (g)The information relates to the protection of the environment.

Regulation 13 Personal data
Note: Absolute FOI exemptions are highlighted in italics.

About the author

Christine helps clients manage risk and financial exposure in their day to day business dealings.

Christine Jackson

Christine helps clients manage risk and financial exposure in their day to day business dealings.

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