Archive for The Exemption Index

The Exemption Index: Sections 30 and 31

Exemption Index logoFOIMan blags information on the FOI Act’s exemptions designed to keep files that could compromise law enforcement behind bars.

Summary

The Kray brothers of FOI exemptions, sections 30 and 31 are the crime lords of the Act’s protection racket. One judge summarised their effect as follows:

“Between them, sections 30 and 31 provide a scheme of exemption, subject to the balance of public interest test, for information held for the purposes of criminal investigation and prosecution and for a range of other investigatory, regulatory and enforcement purposes provided for in a wide range of enactments. Section 30 is engaged if the information is held for the purposes of criminal investigation or prosecution. Section 31 is engaged only if a prejudice test is satisfied; essentially, if disclosure would, or would be likely to, prejudice investigation and subsequent enforcement activity.”

WS v (1) Information Commissioner and (2) North Lancashire PCT [2013] UKUT 181 (AAC) (09 April 2013)

Information affected

Section 30(1) covers any information held by a public authority for the purposes of actual or potential criminal investigations that the authority has the duty or power to conduct. Section 30(2) covers information obtained from confidential sources that has or may be used in criminal or specified civil proceedings conducted by the authority. Section 31 covers information not exempt under section 30, if its disclosure would, or would be likely to, prejudice prevention, investigation or enforcement of a range of criminal or civil matters.

Things that FOI Officers need to know (s.30)

  • Section 30(1) expires when the information becomes historical (ie after 20 years from 2022), but section 30(2) can be applied to older records (eg names of informants from early 20th century).
  • Public authorities must state which part of the exemption they are relying on (eg s.30(1)(a), (b) or (c) or (2)(a) or (b)).
  • 30(1)(a) can only be used by authorities with a duty to investigate offences.
  • 30(1)(b) applies where the public authority has the power to investigate offences but doesn’t have to. It can apply where the authority chooses not to pursue a criminal investigation but could have done.
  • 30(1)(c) covers information held by authorities for the purpose of criminal proceedings – ie deciding whether or not to prosecute or as part of the prosecution process itself (eg the Crown Prosecution Service).
  • 30(2) will cover things like information obtained from informants for criminal investigations; tip offs from witnesses that only came forward on the basis that they could remain anonymous; but also information collected by certain regulators from anonymous sources.
  • 30(2) will also cover evidence from undercover police officers, though the ICO suggests that it normally won’t apply to information provided by employees.
  • It will also cover procedures and protocols about the obtaining of information from confidential sources.
  • 31(2) lists a range of regulatory activities that can also benefit from the protection of s.30(2) – the effect of this is that, for example, the Health & Safety Executive can protect evidence received from whistleblowers.
  • A recent case outlined some of the relevant public interest arguments for withholding information under 30(1)(c) – and many of these arguments could apply to other parts of section 30 (see para 68 of linked decision): not wishing to deter people from assisting criminal investigations; vital interest in maintaining confidentiality so that there can be a full and frank exchange of views between police and the CPS; the CPS being able to communicate “frankly and fearlessly”. It concluded that it would be exceptional for the public interest in disclosure to overcome this need for confidentiality.
  • The Commissioner highlights another useful decision in this regard (see para 14 of linked decision) – it sets out four relevant factors:”(a) the stage a particular investigation or prosecution has reached, (b) whether and to what extent the information is already in the public domain, (c) the significance or sensitivity of the information requested and (d) whether there is any evidence that an investigation or prosecution has not been carried out properly which may be disclosed by the information…”
  • As with most exemptions, there is provision to refuse to confirm or deny whether relevant information is held as necessary.

Things that FOI Officers need to know (s.31)

  • If you’re using section 30, you can’t use s.31 (unless you are neither confirming nor denying whether information is held).
  • “Law enforcement” is a very loose term to describe a long list of “activities and purposes which go beyond actual law enforcement” according to the Information Commissioner’s guidance.
  • This is a prejudice-based exemption – so you have to demonstrate that disclosure would, or would be likely to, prejudice law enforcement. You should set out what prejudice you envisage (p6) – in other words, the harm that disclosure may cause. The widely accepted approach to this is set out in Hogan v IC, and summarised in the Commissioner’s guidance. You must remember to state how likely you consider the prejudice to be – choose between “would” and “would be likely to”.
  • prejudice can be direct or indirect (see para 10 of linked decision).
  • Section 31(1) consists of a long list of things that might be prejudiced by disclosure – effectively s.31 is a list of mini-exemptions.
  • The most significant are: prevention and detection of crime, apprehension and prosecution of offenders, administration of justice, assessment of tax, immigration controls, security of prisons.
  • 31(1)(g) – (i) cover the exercise of a public authority’s functions, civil proceedings, and fatal accident inquiries, for any of the purposes listed at s.31(2). The effect of this is that if prejudice to a range of regulatory functions would or would be likely to be caused by disclosure, the exemption applies.
  • 31(2) includes such broad descriptions as “the purpose of ascertaining whether any person is responsible for any conduct which is improper” – so for example, internal investigations into councillors’ interests and expenses, or disciplinary investigations into employees, are likely to be covered.
  • The Voyias case concerned a request for a list of empty properties, and at the second attempt, the First Tier Tribunal concluded that the exemption applied due to the direct and indirect consequences of squatters using the list to identify suitable properties. They then listed a number of public interest arguments in support of withholding the information that may be useful in other cases: the inherent public interest in crime prevention; the cost of repair and security; eviction costs; impact on those affected; the impact on the surrounding community; impact on public officials and their work.
  • As for s.30 and most other exemptions, public bodies can neither confirm nor deny whether information is held.

Things that requesters need to know

  • In particular, it will be difficult to argue for the disclosure of information that falls under section 30 of the Act – as set out above, there is seen to be a strong public interest in maintaining the confidentiality of this kind of information.
  • Tribunals have said that there would be a public interest in disclosure if the information showed an “attempt to cover up wrongdoing” (para 68 of linked decision).

Essential case law

Recommended reading

  • Investigations and proceedings (section 30), Information Commissioner’s Office, 30 May 2013, version 1.0
  • Law enforcement (section 31), Information Commissioner’s Office, 29 May 2013, version 1.0
  • Wadham, K. Harris and G. Peretz (2011), Blackstone’s Guide to The Freedom of Information Act 2000, 4th ed., OUP, pp.125-130

If you’d like to explore these exemptions in more detail, Paul Gibbons is running a new workshop on the Freedom of Information Exemptions for Act Now Training this Autumn.

The Exemption Index – FOI Section 27

Exemption Index logoFOIMan rummages through the diplomatic bag to find out how the FOI Act seeks to avoid international incidents.

Summary

Ambassador, you’re spoiling us.

Diplomacy is an essential part of maintaining the UK’s place in the world. It is easy to see why the government would be concerned about the possibility that FOI disclosures might cause offence to foreign powers.

However, at the time that FOI was coming into force, the UK’s international relations were under more scrutiny than ever as a result of the recent controversial invasion and ongoing occupation of Iraq. Many of the early decisions involving this exemption related to this significant event.

In my time as an FOI Officer, I used this exemption to protect information relating to the London Olympics – the exemption covers relations with international organisations such as the IOC. On another occasion, it was cited to avoid offence to the Chinese government – in relation to attempts to bring pandas to London Zoo. It can be relevant to situations such as establishing and maintaining twinning relationships between towns and cities in the UK and those abroad, as much as it can be to major international conferences and treaties.

Information affected

Any information which if disclosed would or would be likely to prejudice relations between the UK and any other State; international organisation or court; the interests of the UK abroad; the promotion or protection of the UK’s interests abroad. Also confidential information obtained from another State, international organisation or court.

Things that FOI Officers need to know

Things that requesters need to know

Essential case law

Campaign Against the Arms Trade v IC & Ministry of Defence (EA/2007/0040), 26 August 2008

Gilby v IC and Foreign and Commonwealth Office (EA/2007/0007, 0071, 0079), 22 October 2008

All Party Parliamentary Group on Extraordinary Rendition v IC & Ministry of Defence [2011] UKUT 153 (AAC), April 2011

Recommended reading

  • Awareness Guidance No 14 International Relations (section 27), Information Commissioner’s Office, October 2004 (updated January 2006), version 1.0
  • Wadham, K. Harris and G. Peretz (2011), Blackstone’s Guide to The Freedom of Information Act 2000, 4th ed., OUP, pp.120-123
  • Montague, B. and Amin, L. (2012), FOIA without the Lawyer, Centre for Investigative Journalism, pp.30-35

The Exemption Index – FOI Section 26

Exemption Index logoFOIMan takes on the military might of the FOI exemption designed to avoid conflict with the UK’s defence.

 

Summary

There can be few things more sensitive in government than the defence of the country. It is not surprising that FOI contains an exemption protecting information that might place that defence at risk.

There isn’t however, a vast amount of case law in relation to this exemption. Perhaps this is because in many cases when the exemption might be applied, the information also tends to fall under other exemptions. The case law that does exist contends that there is a substantial public interest in information being withheld where the exemption applies.

One effect of this exemption is that we are not currently allowed to know whether the government has a ray gun or phaser in development. So we’ll have to wait a while before knowing whether Star Trek’s phasers or the Death Star’s planet destroying capability will become reality.

Information affected

Any information which if disclosed would or would be likely to prejudice the defence of the British Islands or of any colony, or the capability, effectiveness or security of the armed forces, not just of the UK, but also of its allies.

Things that FOI Officers need to know

  • The ICO suggests that prejudice in this context means that disclosure might assist an enemy.
  • The exemption covers prejudice not just to UK troops, but also their allies; the ICO’s guidance suggests that this will include formal as well as informal alliances (the guidance mentions as an example the alliance of forces that went into Afghanistan in 2001).
  • Obviously this exemption will most often be used by the Ministry of Defence or its agencies, but the ICO makes clear that other authorities may well have cause to cite it – for example in relation to emergency planning.
  • The ICO suggests that the greater the risk of prejudice, the greater the public interest in withholding the information.
  • There is an exceptionally strong public interest in maintaining the safety and effectiveness of the armed forces (see para 53 of linked Tribunal decision).
  • Authorities can refuse to confirm or deny whether information is held if confirmation would or would be likely to prejudice defence – on one celebrated occasion, the Tribunal upheld the Ministry of Defence’s right not to confirm whether or not it held information on the development of a ray gun! (Or “direct energy weapon” to use the official parlance).

Things that requesters need to know

  • Just because it’s about defence matters, it doesn’t mean that disclosure would or would be likely to cause prejudice. The public authority should have explained how disclosure might cause the prejudice in the specific case.
  • There’s always going to be a strong public interest in preserving the safety and effectiveness of the armed forces – so you’ll need a good argument as to why it is in the public interest to disclose the information (see para 69 of the linked Tribunal decision).
  • The ICO guidance on section 26 suggests that arguments in favour of disclosure will include: furthering public understanding and participation; promoting transparency and accountability in relation to decisions and spending; revealing health and safety issues.

Essential case law

Recommended reading

Paul Gibbons is delivering a new workshop for Act Now Training this Autumn looking at all of the FOI Exemptions – visit the Act Now Training website for further details.

The Exemption Index – FOI Sections 23, 24 & 25

Exemption Index logoFOIMan goes undercover to examine the FOI exemptions designed to protect national security.

Summary

Extract from the leaked script to the next Bond film:

Evil henchman: shall I torture 007 a little more?

Evil head honcho: no, there’s no need for that. You’re getting blood on the carpet. * tuts *

007: I won’t talk you know!

Evil head honcho: I don’t need you to, Mr Bond. I’m just writing this FOI request to the foreign office. You’ll find your M will squawk like a canary faced with the power of whatdotheyknow.com!

Bond: You’re twisted! What kind of sick mind would make a freedom of information request anyway?

Bond, as we know, is fiction. Anyone seeking information on national security matters is unlikely to get very much as a result of an FOI request. They are protected by 0023 and 0024, twins working together to protect the British State. And if they get into trouble, there’s always M to back them up – the Ministerial Certificate that can be issued under section 25 of the Act.

Information affected

Any information directly or indirectly supplied to a public authority by a security body listed at s.23(3) of the Act, or any information relating to those bodies, is subject to the section 23 exemption. If information not falling within s.23 is required to be withheld for the purpose of safeguarding national security it is covered by section 24.

Things that FOI Officers need to know (s.23)

  • That list of bodies can change – the National Crime Agency has been added since the Act was passed.
  • It is a class exemption – so no need to consider whether any prejudice will be caused – merely whether it was supplied by, or relates to, any of the listed bodies.
  • The Information Commissioner considers that “relates to” should be interpreted broadly – though he does concede that “there will be a point where the connection between the requested information and a security body is too remote to engage the exemption.”
  • If it is more likely than not that the information relates to a security body, the exemption will be engaged.
  • Public authorities can refuse to confirm or deny the existence of information provided by or relating to the listed bodies – as long as they can demonstrate that it is more likely than not that any such information would be supplied by such a body if it did exist.
  • If the part of the exemption preventing disclosure applies, then section 24 cannot be cited in addition.
  • If the authority chooses to neither confirm nor deny whether information is held, the Commissioner suggests that the equivalent part of section 24 can be used as well, if relevant (though Wadham queries the validity of this).
  • This exemption is not subject to a public interest test – for most of its life. However, once the information becomes historical (ie older than 20 years from 2020 onwards), the exemption becomes qualified.

Things that FOI Officers need to know (s.24)

  • “required for the purposes of” is interpreted by the Information Commissioner as meaning “reasonably necessary”
  • the definition of “national security” was explored in Norman Baker v IC & Cabinet Office, where the definition from a House of Lords case was adopted.
  • Public authorities need to set out why withholding the information is reasonably necessary
  • This exemption is subject to a public interest test.
  • If the consequences of disclosure are particularly severe, then there will be a strong public interest in withholding the information even if there is a low risk that they would come to pass.
  • Public authorities can neither confirm nor deny whether they hold information if required to safeguard national security. For practical reasons, both exemptions can be cited in these circumstances (though Wadham queries this).

Things that FOI Officers need to know (s.25)

  • Members of the Cabinet, the Attorney General, the Advocate General for Scotland and the Attorney General for Northern Ireland can issue a ministerial certificate certifying that either exemption applies.
  • A certificate doesn’t have to be issued for section 23 or section 24 to apply.
  • The certificate must bear the minister’s signature.
  • For section 24, a certificate will contain a general description of the information covered.

Things that requesters need to know

  • You will need strong arguments to overturn the use of these exemptions.
  • Section 24 is subject to a public interest test – this is the likeliest area of a successful appeal. The Information Commissioner comments that public authorities should not seek to turn section 24 into an absolute exemption despite the strong public interest in protecting national security.
  • The fact that section 23 becomes subject to a public interest test when records become historical suggests that age may well be a strong factor with these exemptions. It may be slightly easier to argue for disclosure of information relating to events several decades ago than more recent matters.

Essential case law

Recommended reading

The Exemption Index – FOI Section 35

Exemption Index logoFOIMan looks at the topical – and controversial – exemption in FOI that is designed to protect a “safe space” in central government.

Summary

It is vital that we get back to the founding principles of freedom of information. Citizens should have access to data and they should know what is done in their name and about the money that is spent in their name, but it is also vital that the conversations between Ministers and civil servants are protected in the interests of good government.

So said Michael Gove, Secretary of State for Justice, in the House of Commons on 23 June 2015. Since then responsibility for FOI has passed to the Cabinet Office, but the announcement of a Commission to review FOI, and its terms of reference, have made clear that the above remains an objective of the current government. Their primary concern is the availability of a safe space for government deliberations.

What are the best ways to achieve this? What recommendations will the Commission make? Well, if securing the safe space is the primary objective, the most likely sections of the Act to face scrutiny are the exemptions at section 35 and 36. I’ve already produced an Exemption Index post on section 36, but it seemed like this was a good time to fill in that section 35-sized gap in the Index…

Information affected

Information held by a government department or by the National Assembly for Wales relating to formulation or development of government policy, Ministerial communications, the provision of advice by any of the Law Officers or any request for the provision of their advice, or the operation of any Ministerial private office.

Things that FOI Officers need to know

  • “relates to” should be interpreted broadly – so the exemption is very wide in scope, capturing not only Ministerial communications, but also documents that refer to them
  • “the formulation or development of government policy” should also be interpreted broadly – it is designed to protect the “safe space” that the government is so concerned about
  • the Information Commissioner provides useful definitions of “policy”, “formulation” and “development”
  • once the decision has been taken, statistical information used in the formulation or development of policy (or in decisions reached covered by Ministerial communications) will not be exempt
  • very unusually, section 35(4) sets out a specific public interest argument in favour of disclosure of factual information supporting policy decisions – as a result, normally such information ought to be disclosed
  • Ministerial Communications includes Cabinet papers as well as other communications (including meeting papers, correspondence, ministerial submissions)
  • Cabinet papers will rarely be disclosed before 30 (or by 2020, 20) years, but the Commissioner has on occasion ordered disclosure on public interest grounds (decisions which have usually been appealed and/or vetoed)
  • This exemption will apply if the Minister’s signature was added to the document – the Information Commissioner therefore expects a robust public interest test to be carried out to counter accusations of abuse
  • The Law Officers are the Attorney General, the Solicitor General, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for Scotland and the Attorney General for Northern Ireland
  • the part of the exemption covering the provision of advice by those law officers is much wider than legal professional privilege as protected by section 42 – it can cover non-legal advice given by those officers
  • the part of the exemption that covers the operation of any Ministerial private office should be interpreted narrowly argues the Information Commissioner – otherwise anything could be withheld if it originated in that office
  • the public interest test must be carried out in respect of any use of this exemption – and where government departments have been ordered to disclose information it is usually because the Commissioner or Tribunal disagree with the department over the assessment of the public interest
  • the more general the arguments against disclosure, the less likely they are to succeed
  • arguments that have worked in the past include: there is still a need for a “private space” on the policy decision because it has not yet been taken; it would expose the relationship between civil servants and ministers to an unhelpful degree of scrutiny and this is argued convincingly by an expert; could affect Ministers’ inclination to seek and rely on formal advice; frankness of comments; the issue is still live; reveals how Cabinet ministers’ views contributed to the development of a policy.

Things that requesters need to know

Essential case law

Department for Education and Skills v Information Commissioner and Evening Standard, EA/2006/0006, 19 February 2007

Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) (11 April 2008)

Department for Education v Information Commissioner, EA/2014/0079, 29 January 2015

Department of Health v Information Commissioner and Simon Lewis, [2015] UKUT 159 (AAC), 30 March 2015

Recommended reading

FOI and Policy Advice, Campaign for Freedom of Information website, 17 July 2015 [accessed 20 July 2015]

Government Policy (Section 35), Information Commissioner’s Office, version 2, 19 March 2015

Burgess, M. (2015), Freedom of Information: A Practical Guide for UK Journalists, Routledge, p.74

FOIMan says

The Exemption Index – FOI Section 36, 23 June 2013

Prince Charles’ Letters and the Veto, 26 March 2015

Commission to look at FOI (and a move to the Cabinet Office), 17 July 2015