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Undergraduate Postgraduate
Colchester Campus
Saturday 21 June 2014 (booking now)
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Freedom of Information Act 2000

Information exempt from disclosure

The Freedom of Information Act (FOIA) covers all information held by the University. Unless the information falls into one of the Act's narrow and specific exemptions, the University is obliged to provide access to any individual who requests to see it.

Information exempt from disclosure

The exemptions are broken down into two categories: absolute exemptions, where disclosure of the information is not necessary; and qualified exemptions, which means the information is subject to a ‘public interest test'. Qualified exemptions will only apply where pressing public interest arguments can be made for withholding the information. In effect, information that falls into a particular qualified exemption category will still have to be disclosed unless it can be argued that the public interest in withholding it is greater than the public interest in releasing it.

What is the ‘Public Interest'?

Generally, the public interest is considered to be served when the disclosure of information would do any of the following:

  • further the understanding of, and participation in the debate of issues of the day;
  • facilitate the accountability and transparency of the University in relation to its decision-making;
  • allow individuals to understand decisions made by the University affecting their lives and, in some cases, assist individuals to challenge those decisions;
  • facilitate accountability and transparency in the spending of public money;
  • bring to light information affecting public safety.

Out of the 23 exemption categories that exist within the Act, 9 have direct relevance to University activities. Explanations and advice relating to these 9 exemptions are below:

Information accessible to the applicant by other means (absolute exemption)

Information which is "reasonably accessible to the applicant” is exempt. This means the University does not have to provide information that is available to an applicant elsewhere. The thinking behind the exemption is that if there is another route by which someone can obtain information, there is no need for the Act to provide the means of access. The University is still under a duty, however, to provide advice and assistance to applicants requesting information. This means that any individual requesting information should be left in no doubt at all as to how and where the information can be obtained.

The use of the term "to the applicant”, as opposed to "to the public”, is significant. The circumstances of the applicant may have a bearing on whether the information is accessible to them or not, and thus whether the exemption applies. Information may be regarded as reasonably accessible to the applicant even if it is only accessible by payment.

The University's Freedom of Information Publication Schemes are examples of where information is already accessible to those who may request to see it. The more information that is published in the schemes, the less access to information will need to be provided on request.

Information intended for future publication (qualified exemption)

Information is exempt from disclosure if the University plans to publish it at some point in the future, regardless of whether the date for future publication has been determined. When relying upon this exemption, there is an expectation for evidence to be produced to substantiate the claim that there is, at the time the request is made, a settled intention to publish.

In order to be able to rely on this exemption, there are two issues to be considered:

  1. Is there a genuine intention to publish the information requested? Where information has already been prepared for release, it is likely that a timeframe for publication will have been agreed. Under these circumstances, there will be no question as to whether there is an intention to publish. However, where the information exists only in draft form or where it forms part of a larger body of information, then it may be more difficult to rely upon the exemption.
  2. Is the information intended for publication the actual information that the applicant has requested? There may be a subtle difference between the two. For example, if an applicant asks for reasons why a University Committee has made a specific decision, it may not be sufficient to inform them that a document setting out the background and basis of a decision is due to be published when, in fact, the applicant wants to know how a particular decision was reached.

Draft Documents and Papers: The exemption relating to information intended for future publication may also cover information that has not yet been prepared for publication. Although it does not apply to drafts in general, the exemption may cover drafts of documents that are intended for future publication. For the exemption to be relevant there must be a firm intention to publish the information at the time the request is received. The fact that the information contained in a draft may be subject to amendment or may be omitted from the final published version does not necessarily mean that it would be wrong to invoke the exemption.

When thinking about drafts, it is also necessary to distinguish between the information that the University proposes to publish and the associated background information. For example, discussion papers that may have been prepared in order to assist decisions laid out in a particular publication, but which are not intended for publication themselves, are not subject to the exemption and must be disclosed.

It is also useful to reiterate that the FOIA relates to ‘information' rather than ‘documents'. The fact that the words of the final document may differ from those of earlier drafts does not necessarily mean that the information is not the same.

Once a finalised document is published, it is important that the University's policy on draft papers is adhered to.

Information relating to law enforcement (qualified exemption)

Information is exempt if its disclosure under the Act would prejudice the enforcement of the law. This covers the:

  • prevention or detection of crime;
  • apprehension or prosecution of offenders;
  • administration of justice;
  • assessment or collection of tax;
  • operation of immigration controls; and
  • maintenance of security and good order in prisons or other institutions where people are lawfully detained.

Equally, the Act provides an exemption for information relating to the University's role in certain civil proceedings. The following circumstances may be of relevance to University activities:

  • ascertaining whether any person has failed to comply with the law;
  • ascertaining whether anyone is responsible for any improper conduct;
  • ascertaining the cause of an accident; or
  • securing the health, safety and welfare of all individuals connected to the University, including employees, students and visitors.

Health and Safety (qualified exemption)

Information is exempt if disclosure would endanger the physical or mental health or the safety of any individual.

Personal Information (part absolute and part qualified)

The only exemption to fall into both categories, this one deals with the disclosure of personal information under the FOIA. Further information can be found on the Freedom of Information and Personal Data webpage.

Prejudice to effective conduct of public affairs (qualified exemption)

Information is exempt from disclosure if, in the reasonable opinion of a "qualified person”, it would inhibit the free and frank provision of advice or exchange of views, or would otherwise prejudice the effective conduct of public affairs. The Vice-Chancellor is considered to be a relevant "qualified person”.

The Information Commissioner is keen to highlight that all work carried out by public authorities may be considered to be "public affairs”, so it is important not to see this exemption as a catch-all.

Generally, the exemption means that information is exempt if its disclosure would restrain, decrease or suppress the freedom with which opinions or options are expressed. Examples of "advice” could be recommendations made by more junior staff to more senior staff, or advice from or supplied to external sources.

While the Act does not define "effective conduct” or "public affairs”, the general view is that the exemption is designed to cover rare, unforeseen situations that cannot be covered by another exemption (but still require information to be withheld in the interests of good governance), rather than catching anything and everything that is not otherwise exempt.
The Information Commissioner acknowledges that the prospect of disclosure of information that reveals internal thinking processes may be detrimental to the quality of either policy or decision making within the University. The overall view, though, is that there must be some clear, specific and credible evidence that the substance or quality of deliberations or advice would be damaged by the threat of disclosure under the FOIA.

Information provided in confidence (absolute exemption)

Information is exempt if it was obtained by the University from any other person or organisation, including another public authority, and its disclosure to the public would constitute an "actionable breach of confidence”. "Actionable” means that an aggrieved party would have the right to take the University to court as a result of the disclosure. Please note that information generated by the University itself would never have been obtained in confidence and consequently would not fall within this exemption. Equally, the exemption does not apply where the information passes between different parts of the University. The Information Commissioner has made it clear that this exemption should be seen and applied in a limited and narrow way. Documents marked "confidential” will not be exempt from disclosure.

For the exemption to apply, the information must have been obtained under a duty of confidence, and it must still be an "actionable breach of confidence” to disclose the information at the time that the application for disclosure is made. This begs an obvious question: What is an "actionable breach of confidence”? Essentially, a breach of confidence has occurred if information is disclosed to the public that was provided to the University by a person or organisation on the understanding that it would remain confidential. It may be that over time the information loses the importance of its original confidentiality. Under these circumstances, disclosure is possible. The best course of action is to check with the person or organisation affected. It should be noted, however, that the University itself must be satisfied that an obligation of confidence exists. There is no veto given to third parties who object to disclosure. In effect, the University must make the final decision.

Analysing the existence of a duty of confidence is potentially a difficult judgement to make. The following factors should be considered:

  1. If a contract exists between the University and the person or organisation in question, this is the best way to assess any duty of confidentiality to the information provided by them. Equally, an organisation may write a letter to the University stating explicitly that certain information has been provided in confidence. If the University were then to disclose information covered by this contract or correspondence to an individual making a request under the FOIA, it is likely an actionable breach of confidence would have occurred. The Information Commissioner states that a court would look to the terms of the contract or correspondence to ascertain whether this was the case.
  2. Where no contract or correspondence exists or the terms of the contract do not sufficiently clarify the situation, again the best initial course of action would be to take advice from the person or organisation affected. Once again, however, the final decision must be made by the University and the third party in question does not have a veto over that decision. If that fails to establish whether the information was provided in confidence or whether the University still has a duty of confidence in relation to the information, two further factors must be considered:
  • It is unlikely that useless or "trivial” information would be covered by a duty of confidence; and
  • Information accessible by other means or already published in the public domain would not be covered by a duty of confidence.

Legal professional Privilege (qualified exemption)

The Act provides an exemption for any requested information that is protected by legal professional privilege that could be maintained in legal proceedings. The privilege aims to ensure that any communication between the University and its legal advisers will be treated in confidence and not revealed without consent.

Commercial interests (qualified exemption)

Information is exempt if it constitutes a "trade secret” or if its disclosure would prejudice the commercial interests of any person or organisation, including the University. It is important to note the distinction between commercial interests and financial interests. Commercial information relates to the activity of buying or selling goods and services. While there will be many cases where the financial interests of the University may affect its commercial interests, this is not necessarily always the case. For example, information relating to how the level of tuition fees is set affects the financial interests of the University, but the information does not relate to its commercial activity.

The application of this exemption may vary depending upon the time when a request for information is received. For example, the commercial interests of a company might be prejudiced if certain information was made public whilst the company was tendering for a contract. If the same information was requested some time after the contract had been awarded, however, there may not be the same prejudice. Please note that the expression "trade secret” is not defined in the Act, but the Information Commissioner states that it is an expression well understood at common law within the law of confidence as being something that a business would consider as giving it a commercial advantage over its competitors.

Prohibitions on disclosure (absolute exemption)

Information is exempt from disclosure if it is prohibited under any other legislation or would constitute a contempt of court.

Remaining Exemptions

Other exemptions in the Act relate to:

  • Information relating to bodies dealing with security matters;
  • National Security;
  • Defence;
  • International Relations;
  • Relations within the UK;
  • The Economy;
  • Investigations and proceedings conducted by public authorities;
  • Court Records;
  • Audit Functions;
  • Parliamentary Privilege;
  • Formulation of Government Policy;
  • Communications with the Queen; and
  • Environmental Information

Further information