FOIMan looks at the significance of the public interest test under FOI.
Most of the exemptions in the Freedom of Information Act (FOIA) are “qualified” exemptions, meaning that the public authority has to consider not just whether the exemption applies, but also whether the public interest in withholding the information outweighs the public interest in disclosing it. The phrase “public interest” is bandied around a lot, and not just in FOI contexts.
The public interest in a FOI context means something which benefits the public in general. Just because something is interesting, it doesn’t necessarily mean that it would be in the public interest to disclose it.
There might be many reasons why it might not be in the public interest to disclose information. Perhaps it would lead to higher public expenditure, or would place employees or the public at risk. Conversely, there can be very persuasive reasons for disclosing information, not least the fact that FOI itself demonstrates the need for transparency and accountability. The public interest test is about weighing competing arguments of this type and deciding which arguments have most gravity, or seriousness.
I would argue that the public interest test is fundamental to UK FOI. Whilst in many cases it would be impossible for the Information Commissioner or for the courts to disagree that an exemption applies, the existence of a public interest test provides for an element of independence. Ultimately, the Commissioner or the tribunals can, and often do, take a different view of where the public interest lies from the public authorities that originally received the request. It means that the power to decide can sit with an independent arbiter rather than the public body or the government.
My latest piece for PDP’s FOI Journal looks at the public interest test in more detail, including what it is and how to do it.