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:
- 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.
- 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:
- 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.
- 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