Exemptions
Introduction
This guide is intended to be a high level look at the FOI exemptions that might affect requests for information to the County Council. This guide should be read in conjunction with the other guidance on FOI.
For detailed guidance on exemptions see the “awareness guidance” series issued by the Information Commissioner on their website and the guidance available on the Department of Constitutional Affairs website.
Information available to applicant by other means
If the information is already easily available (as a matter of fact) for free or at a cost to the applicant then we can refer the person to that source and need not deal with the request as a formal FOI request. If the information is readily accessible to the public then we can presume that it is accessible to specific applicants unless they tell us otherwise. We may need to make special provision for them and may have to deal with their request through our formal FOI process.
Examples: “Can I have a copy of the Leader's expenses for 2004?” This information is included in our Publication Scheme on our website. We can simply refer the applicant to the information.
Considerations required to reach a decision
We have a duty to provide advice and assistance to people making requests. Letters referring customers to other organisations should be drafted in line with our FOI letter templates [PDF 788KB]
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Documents that are available by law for inspection are not covered by this exemption unless they are in a class of documents referred to in the Publication Scheme.
We should be sensitive to the mobility, reading and language needs of our customers. It is possible to provide Braille, audio tape and translations of information. This should be considered on a case by case basis
Too expensive
We are allowed to refuse a request where the cost of compliance exceeds an appropriate limit. The appropriate limit is £450 which is equivalent to two and half days searching and collating the information. This is calculated using a £22.50 hourly rate
Example: “…please tell me how Councillor X has voted on issues regarding street lighting since 1984…”
Considerations required to reach a decision
In the first instance we should be indicating that the cost of responding to the request is excessive and asking the requestor to hone down their request.
Information intended for future publication
This exemption is all about timing. If the information requested is due to be made public at some later date, we should explain how and when this will happen and how the customer will be able to get hold of it. However, we will need to decide if it is in the public interest (see below) to release this information to them now before we can decide to refuse the request for disclosure of the information.
Examples: “please let me have a copy of the draft report on the purchase of a children's home in my area”.
Considerations required to reach a decision
There must be a firm intention to publish the information contained in the draft document/s for this exemption to be claimed. Timing of publication may be key. Where this is the case we will be less likely to provide a draft version. Conversely timing of information provision may be key to a customer making a request so that the usual practice of only releasing agreed minutes may be departed from in a given case.
Public interest decisions are taken by three senior officers. Please speak to your relevant Departmental FOI specialist if in doubt about this.
Health and Safety
We must not provide information if that could threaten the health or safety of any individual. But the public interest in releasing the information must be considered before access is refused.
Examples: we should not disclose the identity of an officer to a potentially violent individual who has been affected by one of their decisions.
If the Council is only considering closing a care home, that information need not be disclosed if that would needlessly distress the residents, though it may judged to be in the public interest to do so. If there are definite plans or proposals for closure it will almost certainly be in the public interest to disclose and residents have a right to know.
Information concerning the environment
This is exempt only because it should be processed under the Environmental Information Regulations and not FOI.
Examples: Information about noise or air pollution, planning for new buildings or roads or sites of scientific or biological interest.
Considerations required to reach a decision
There is a separate procedure for EIR. In the first instance refer to the Legal Services.
Personal Information
Any person who asks for personal information about themselves is making a request for ‘subject access’ under Data Protection law and the request must be automatically treated as such and not an FOI request.
Examples: An employee asking to see their personnel file or Social Care clients asking to see their case file.
Considerations required to reach a decision
Refer these requests to the Data Protection Officer at County Hall or to the relevant Information Officer in your Department.
Where someone makes a request for information about someone else (usually called a “third party”) then there is an exemption if the release of the information would breach any of the Data Protection Principles.
Examples: “I want to see the Chief Executive’s travel expenses claim for this year.” It is arguable that as the most senior officer in the Council, this is not private information. The less senior an officer the more likely the information would not be disclosed.
Considerations required to reach a decision
Seek advice from the Data Protection Officer. Where the information is about the third party’s home, family life, personal finances it is likely to deserve protection. Information about someone acting in their official capacity should normally be provided. Other factors are whether the third party expected their information to be kept private, they have lodged a formal objection to its release or the release would cause unnecessary distress or damage to them.
Information provided in confidence
The government in a Code of Practice for all public authorities has said that information should not normally be accepted in confidence. This is because it defeats the objectives of openness and transparency which FOI seeks to promote. However, it is accepted that we may accept it if the information would not otherwise be provided and it is necessary for our purposes. Information that is accepted in confidence will have to be justified to the Information Commissioner’s Office if we are challenged about not disclosing it.
Examples: We may need to ask a business about their future business plans for example in the context of an application for grant aid. They might not be prepared to provide it, if we do not agree to accept it ‘in confidence’. That sort of information in the hands of competitor organisations could be highly detrimental to the business.
Considerations required to reach a decision
Calling information “confidential” is not enough. It must have some element about it that would allow the other party to take us to court if we disclosed it. This exemption is absolute so if information is in fact and in law confidential then we should not disclose it.
Commercial Interests
“Trade secrets” are protected from disclosure absolutely. We might however have to say whether we hold them or not if asked.
Other Information may be withheld from disclosure where its disclosure would prejudice the commercial interests of either the Council or another person (in the legal sense so including a company, other authority, individual or other legal entity) we are in business with. However the public interest must be considered before anything is withheld.
Examples: A formula that is a trade secret may be withheld.
Detailed pricing information about a contract could affect a contractor’s “bottom line” if disclosed to competitors. However, the public interest must be taken into account, so there may well be occasions when such information would have to be disclosed or some details about the contract.
Considerations required to reach a decision
Take specialist advice from either one of the Departmental FOI practitioners or Legal Services where these issues arise.
Investigations and proceedings
Information about any criminal investigations or proceedings we are conducting can be withheld, if disclosure could affect them. This extends to information that has been gathered and may be used in prosecutions and to information about our internal procedures. Any information that if disclosed would prejudice the prevention or detection of crime or the collection of taxes is also exempt but in all cases we must consider the public interest.
Examples: Trading Standards programmes, inspection procedures and investigations. Fire Service arson investigations. The details of our buildings' security arrangements are also exempt from disclosure.
Considerations required to reach a decision
Take specialist advice from one of the Departmental FOI practitioners or Legal Services where these issues arise.
Court records
Records from the County or other Courts are exempt as are notices issued to the County Council by the Courts.
Examples: Documents placed in the custody of a court. Court notices served on the County Council, records of court proceedings.
Considerations required to reach a decision
Take specialist advice from one of the Departmental FOI practitioners or Legal Services where these issues arise.
Legal advice
Information provided by a lawyer when a legal case is being considered or legal advice is being taken may be withheld but only if it is likely that the information would be covered by ‘legal privilege’ in a court of law. However, this exemption is also subject to a public interest test.
Examples: Legal advice provided to the Council about an employment tribunal case.
Considerations required to reach a decision
It is for the “client” to assert privilege. Just because a lawyer has given you advice about something does not make it “legal advice”. It must entail advice about legal rights and responsibilities. Presentational advice such as amendments to letters or reports would not be caught. Take advice from Legal Services if this issue arises.
Prohibited by law
We are (not surprisingly) prohibited by law from disclosing information if the disclosure would be illegal.
Examples: Adoption records may not be disclosed. A Court may order that specific information must be kept secret.
Considerations required to reach a decision
If you are not aware of the legal prohibitions that apply to your area of work then please contact Legal Services for advice.
Public Interest test
This is effectively an override to some of the exemptions. Even though an exemption applies to information we may decide to release it anyway where the public interest in disclosure outweighs the reasons for not disclosing.
Public interest decisions will be taken by three senior officers who will have to balance such issues as promoting understanding of issues of the day, helping accountability and transparency in decisions taken by the Council and the spending of public money with for example the commercial interests of a company or individual.
