The Exemption Index: Section 22 – information intended for future publication

Exemption Index logoFOIMan looks at the qualified exemption covering information intended for future publication.

Summary

Imagine that you are a famous author. You’ve spent months, if not years, working on your latest novel. Another draft and all the typos will be gone. Another draft and it will be perfect. But not quite yet. Then you get a call from your publisher.

“Sorry,” they say, “but one of your fans has requested that we send them a copy of your book now.”

“But, you can’t let them, it’s not ready!”

“Well, we have to, it’s the law.”

You’re going to be pretty miffed to say the least. Public authorities publish all sorts of information all the time. Often reports involve meticulous research, drafting and preparation. So potentially FOI could place them in the same position as our author. That’s what the exemption for future publication is all about. Protecting the drafting process.

Of course, public authorities could abuse that. They could just use the exemption to delay the release of any information that they don’t want to disclose right now because it is politically inconvenient. So the exemption is drafted – and interpreted – in a way that limits its use. And once the information has been published – it no longer applies to any of the affected information.

Note that a new exemption covering future publication of research data (section 22A) will be introduced by the Intellectual Property Act which at the time of writing is awaiting Royal Assent.

Information affected

Information that the public authority already intends to publish at a future date at the time that the request is received.

Things that FOI Officers need to know

  • There must be a settled intention to publish the information at the time the request is received.
  • Drafts and data collected as part of the preparation of the publication can potentially be withheld using this exemption – up to the point when the information is published.
  • The exemption doesn’t just cover formally published information – it can be used for notes of a speech that will be broadcast, for example, or information that will be made available in a Record Office/archives for inspection.
  • A definite date is not required. However, the Commissioner takes the view that timing is a key factor when deciding whether withholding the information is “reasonable in all the circumstances” (FS51021803, para 60).
  • Publication means publication by anybody – it doesn’t have to have been drafted by the public authority itself.
  • In order to demonstrate that withholding the information is “reasonable in all the circumstances”, make sure there is evidence that this is not just a knee jerk reaction – have you at least considered the possibility of disclosing the information?
  • It’s easy to forget that this is a qualified exemption – you have to carry out a public interest test. The Commissioner says that the more distant or uncertain the date of publication, the greater the public interest in disclosure. Arguments against disclosure that can be effective include that it would require staff to spend time on accelerating publication rather than other activities in the public interest; or that confidence in the process may be undermined; or that it might result in inaccurate, unchecked information being disclosed prematurely, misleading the public; or that disclosure might jeopardise longer-term value of the information (eg if there is an intention to publish commercially – see para 21 of QMU v IC).

Things that requesters need to know

  • Publication means to the general public. If the public authority is only intending to make the information available to a restricted audience, then the exemption doesn’t apply.
  • The exemption only applies to information that the public authority intends to publish. Many, if not most, Commissioner decisions to overturn s.22 refusals are done so on this basis.
  • If any of the information was originally collected for publication, but has subsequently been rejected, it will not be covered by the exemption. If the authority is not sure which information will be published then the exemption does not apply (FS51021803, paras 61-63).
  • The exemption is subject to a public interest test, so you should always challenge a response where it appears that this has not been carried out. Arguments in favour of disclosure that may be successful include that publication will be significantly delayed; or that early publication will not unduly disrupt the authority’s plans.

Essential case law

Recommended reading

FOI Man says…

One comment

  1. Rodney Breen says:

    That’s a good, useful summary, thanks. Interestingly, Scotland already has the research exemption, but as a trade off there’s a set limit to the time allowed – 12 weeks (which seems pretty reasonable to me).