Exemptions to disclosure

April 2009

Part 3 – Exemptions to disclosure

81.41 – Background to exemptions

The premise on which FOIA is based is that disclosure of information should be the default position and section 1 of the FOIA thus provides for a general right of access to information held by public authorities. However, public authorities do not have an unlimited duty to provide information. Part II FOIA sets out those cases in which information may be exempt from disclosure. [note 1]

 

81.42 – Types of exemption

There are two types of exemption to the right of access given by section 1 FOIA. These are:

a) absolute exemptions; and

b) non-absolute exemptions which may apply:

i) if disclosure of the information would prejudice particular interests (as set out within the FOIA)

ii) where the public interest balance dictates.

 

81.43 – Absolute and non-absolute exemptions

FOIA distinguishes between ‘absolute exemptions’ and ‘non-absolute exemptions’ (which are sometimes referred to as ‘qualified exemptions’). In this chapter the term ‘non-absolute exemptions’ will be used. An absolute exemption, means that if the information requested falls within the exemption, there is no need to disclose it or even (in most cases) to disclose whether the information is held or not. In the case of a non-absolute exemptions, a ‘public interest test’ must be considered both in deciding to disclose whether the information is actually held, and then in deciding whether to disclose or withhold it. The exemptions are discussed in more detail in the following paragraphs. [note 2]

 

81.44 Absolute Exemptions

The absolute exemptions listed in Part II of FOIA are as follows:

Section 21 – Information accessible to the applicant by other means 

Section 23 –  Information related to security matters

Section 32 – Court records 

Section 34 – Parliamentary privilege 

Section 40(1) – Personal information (of the applicant) 

Section 41 – Confidential information 

Section 44 – Prohibitions on disclosure by enactment 

Generally, where an action officer can rely upon an absolute exemption the information requested does not have to be disclosed nor does it have to be disclosed whether the information is held (with the exception of section 21), to the extent that if disclosing that the information is held would be a breach of the particular section.

The absolute exemptions that may be of relevance to The Service are as follows and in some cases more than one may apply to a request.

 

81.45 - Section 21 – Information accessible by other means

Information which is accessible to the public by other means - even if payment is required for that access to be given The purpose of this exemption is to ensure that the public authority does not become the natural first choice source of information which the applicant can get elsewhere. [note 3]

Provided the information requested is reasonably accessible by other means (even if that would require payment), then this exemption may apply. Information is reasonably accessible if (for example):

  1. it is made available in accordance with The Insolvency Service publication scheme; or
  2. it is available by virtue of other legislation e.g. from the EIIR, under the subject access provisions of the DPA, from Companies House, public archives and records; or
  3. it is available commercially or through a public resource e.g. a public library, internet, credit reference agency, newspaper or publisher.

In considering the application of this exemption staff should note that it contains a subjective element in the term reasonably accessible, and the following points should be considered:

  1. is the applicant disadvantaged in some way e.g. by disability, educational or economic circumstances, which might make information inaccessible; or
  2. does the applicant have access to otherwise closed sources of information by virtue of a particular quality, entitlement or qualification; or
  3. does the applicant possess the skills or resources which would make otherwise inaccessible information available (research, technical or linguistic skills)
  4. does the applicant have legal access rights to the information held elsewhere.

 

81.46 – Responding to applications under S21

If the applicant cannot obtain access to the website, a copy of the information should be provided. It should be remembered that there is an obligation to assist the applicant and if it is more straightforward to provide the information it should be given rather than refer the applicant elsewhere. For example, where the information requested is contained in an Insolvency Service leaflet this should be sent to the applicant but he/she may be directed to the website if he/she has given a preference to receive the information electronically. Similarly if a list of the insolvency practitioners is requested, this can be provided rather than refer the applicant to the website.

This is an absolute exemption in most respects but the duty to confirm or deny whether the information is held still exists.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.47 - Section 32 - court records

This information is exempted if it is held solely by virtue of being contained in any file or otherwise placed in the custody of the court. (This applies to both civil and criminal court records.) Where this exemption applies there is no duty to confirm or deny the existence of the information. If the information in question has also been obtained from another source or by other means, this exemption will not apply. [note 4]

The disclosure of information contained in court records is regulated by the procedures applying to the court or tribunal in question. For example, in the High Court and county courts, the Civil Procedure Rules govern access by non-parties to documents coming into existence in the course of proceedings. Thus, where information is held by The Service only by virtue of being contained in a document which falls within one of the listed categories in section 32, the request should be refused, as disclosure will be a matter for the court in question.

 

81.48 – Documents served on or by The Service

This exemption covers documents created by the parties to the litigation and will include information contained in:

  • claim forms and statements of defence;
  • criminal committal documents;
  • disclosure lists;
  • skeleton arguments;
  • witness statements;
  • reports and exhibits by experts e.g. medical, accountant;
  • public interest immunity applications and certificates;
  • questionnaires and pre-trial checklists;
  • notices of payment of monies into court
  • application notices;
  • trial bundles;
  • responses to requests for Further and Better Particulars;
  • any other document placed before the court for the purpose of a decision or ruling.

Where The Service is party to litigation, documents received from the other parties is normally exempt, however the exemption does not extend to information contained in exempt documents if the information is also held by The Service in another form.

 

81.49 – Effect of section 32 exemption

Generally speaking, the effect of this exemption is that parties to court proceedings will retain their rights of access to information, such as witness statements, under the normal court disclosure rules whilst third parties, such as the press, will only have access to information made public in open court or available under the court rules but not to information which is subject to proceedings ‘in camera’. Guidance in Chapter 47 on disclosure of information during civil or criminal proceedings, including on receipt of a witness summons, should be followed.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.50 – Section 34 – Parliamentary privilege

Section 34 is an absolute exemption in relation to information held by the Houses of Parliament, on the grounds of Parliamentary privilege. The non-absolute applications that relate to The Service are dealt with in paragraph 81.69

 

81.51 – Section 40(1) – Personal information

Any request under FOIA for the personal information of the requester is exempted as a class. The right to know whether personal information is held and, if so, to have access to that information must be dealt with under the provisions of the DPA where a request for personal information relates to him or herself. [note 5]

The purpose of the section 40 exemption is to channel requests for personal data by the applicant into the DPA subject access scheme and to limit the rights of applicants to access third party personal information, thus ensuring that the rights of data subject are protected. DPA, which has been amended by FOIA, is covered in greater detail in chapter 81A of the Technical Manual.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.52 – Section 41 - Information provided in confidence

Information that is held by The Service, and that has been provided or given in confidence will be exempt if its disclosure would constitute a breach of confidence actionable any person. A duty of confidence arises when one person is provided with information by another in the expectation that the information will only be used or disclosed in accordance with the wishes of the confider and not disclosed any further. If there is a breach of confidence, the confider will have the right to take action through the courts. [note 6]

It should be made clear to correspondents that because letters are headed ‘in confidence’ or ‘confidential’ it does not automatically mean that all of the contents of the letter will be treated as confidential. However, where a request for information is received and the confider consents to the information being disclosed, disclosure will not lead to a breach of confidence.

The exemption under this section does not apply to The Service’s own confidential information (although it can still apply to information which is confidential to its staff e.g. staff appraisal, salary details etc) because section 41 refers to information ‘obtained by the public authority from another person’. It should also be noted that other government departments cannot claim a section 41 exemption on the grounds that disclosure would be actionable since the government cannot sue itself.

 

81.53 – Defining confidential information

In general terms information can only be defined as confidential if:

  • it is not ‘trivial and has the necessary ‘quality of confidence’;
  • it has been provided in circumstances that implied an obligation of confidentiality (information in the public domain is not confidential); and
  • disclosure of the information would be detrimental to the party wishing to keep it confidential.

Even if these conditions are fulfilled an action for breach of confidence will fail (and the exemption therefore not apply) if disclosure is in the public interest. This is the public interest defence to an action for breach of confidence and derives from common law, rather than FOIA.

 

81.54 – Responding to requests under section 41

In considering whether information should be disclosed staff must apply three important criteria to the request:

  • the circumstances in which the information is obtained, and whether at the time The Service expressly agreed to keep it confidential. Guidelines on when confidentiality restrictions should be agreed are contained in a Code of Practice issued by the Lord Chancellor; [note 7]
  • consideration of personal information under DPA; and
  • the balance between disclosure that may lead to a claim for breach of confidence against the sanctions that may apply if refusal under FOIA is challenged.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.55 – Section 44 – Prohibitions on disclosure

Where disclosure of information is prohibited by other legal rules it is also exempt under section 44. The FOIA does not cut across existing legal regimes that restrict access to information that is held by The Service e.g. the Data Protection Act, the Humans Rights Act etc., nor does it provide an alternative means of accessing such information. [note 8]

There are three legal provisions which apply in this context:

  • disclosures prohibited by statute;
  • disclosure incompatible with EU law; or
  • disclosures that would be a contempt of court

The requirement to confirm or deny the existence of the information does not apply to the extent that doing so is restricted by other legal prohibitions.

Staff should consult the FOI/DPA Liaison Officer in Technical Section if there is uncertainty about the application of this exemption. Alternatively, if the information is important in a further enquiry case that might lead to a prosecution, disqualification order application or BRO/BRU, Enforcement Technical should be consulted.

Further information on this exemption may be found in the ICO awareness guidance HERE.  

 

81.56 – The Human Rights Act and the right to privacy

The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law. One of these rights is the right to respect for private and family life of living persons (article 8).

Staff should be aware of article 8 when considering the relevance of the exemptions for personal information and confidential information. However, in Information Tribunal Decision in Bluck the Tribunal confirmed that article 8 does not act as a separate exemption from disclosure under FOIA. It does not come within section 44 (the exemption for disclosures prohibited by law).

 

81.57 – Non-absolute exemptions

If no absolute exemptions apply, the next point to consider is whether any non-absolute exemptions might be engaged. Where a non-absolute exemption appears to be applicable, staff must consider (a) whether the public interest in refusing to confirm or deny that the information is held outweighs the public interest in disclosing that fact (having regard for any restrictions which arises under section 1(1)(a)), and (b) whether the public interest in withholding the information outweighs the public interest in disclosing it. This is referred to in this chapter as ‘the public interest test’.

 

81.58  Public interest and prejudice test

The previous parts of this chapter described absolute exemptions, which can be used to protect whole classes of information. Non-absolute exemptions are different and can be applied:

  1. only where there is a public interest in using the exemption – that is where the public interest in withholding the information outweighs the public interest in disclosing it, and
  2. in some cases (additionally) where disclosure would prejudice the interest described. In these exemptions the question must be addressed not only what is the public interest that is protected, but also what the prejudice caused would be.

 

81.59  Public interest factors

There is no fixed definition of the ‘public interest’ and judgments must be made on a case by case basis based on the information holders knowledge of the sensitivities involved. Where commercial interests are involved, consultation with those affected should inform, although not necessarily determine, the public interest.

Factors that favour disclosure include:

  1. furthering public understanding and debate on policy, proposals or decisions,
  2. promoting accountability and transparency about decisions taken,
  3. the decisions taken on spending of public money,
  4. greater understanding of the reasoning behind decisions which affect the public.

The ‘public interest’ is not the same as ‘what the public are interested in’ and harmful effects of disclosure must also be considered.

Undesirable effects can include:

  1. undermining effective government by discouraging frankness and candour in internal communications and
  2. harming a competitive position in a commercial matter.

In all cases where an FOIA exemption is cited (and a refusal notice issued) the balance of factors for and against must be explained to the applicant in the reply.

Further information on applying the public interest may be found in the ICO awareness guidance HERE. 

 

81.60  Non-absolute exemption – prejudiced test

The public interest test must be applied to all non-absolute exemptions, while the following exemptions also requires the ‘prejudice test’ to be applied.

Section 24 – National security

Section 26 – Defence

Section 27 (1) – International relations

Section 28 – Relations within the UK

Section 29 – The economy

Section 31 – Law enforcement 

Section 33 – Audit function 

Section 36 – Prejudice to conduct of public affairs 

Section 38 – Health and safety

Section 43 (2) – Commercial interests 

Further information on the prejudice test may be found in the ICO awareness guidance HERE. 

 

81.61  Non-absolute exemption - no prejudice test

The remaining non-absolute exemptions for which only the public interest test is relevant, are:

Section 22 – Information intended for future publication 

Section 27 (2) – International relations

Section 30 – Investigations by public authorities 

Section 35 – Formulation of Government policy 

Section 37 – Communication with Her Majesty

Section 39 – Environmental information 

Section 40(2) – Personal information (third parties) 

Section 42 – Legal professional privilege 

Section 43 (1) – Commercial interests 

The non-absolute exemptions that are likely to be relevant to The Insolvency Service are as follows:

 

81.62  Section 22 - Information intended for future publication

The Service proactively publishes information independently of the obligations of FOIA and also within our publication scheme. This exemption is intended to ensure individual requests do not dictate publication timetables or force premature publication (unless this is in the public interest).

In effect the exemption allows The Service to manage proactive publication in line with the particular circumstances of preparation, administration and other factors. [note 9]

To qualify for this exemption the information must meet three conditions:

  • the information must be held ‘with a view’ to publishing by The Service, or by some other body, at some future date (whether that date is determined or not);
  • the intention to publish must exist at the time of the request;
  • it must be reasonable in all the circumstances to withhold the information until the date of the planned release.

Information which The Service intends to pass on to another organisation for publication would normally engage this exemption, as would information where it has no intention to publish itself, but which will be published by someone else.

The intention to publish must be current and continuing and in this sense will cover draft documents whilst a document is a current draft. Once a draft has been superseded, the information that is removed from the subsequent draft will not normally be exempt under this section (although other exemptions may instead apply).

The duty to confirm or deny that the information is held does not apply if to do so would involve disclosure of information that falls under section 22(1). There is no prejudice test required for this exemption.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.63 Section 30 – Investigations conducted by public authorities

Information held for the purpose of any investigations The Service has a duty to conduct with a view to ascertaining whether an individual should be charged with any offences, including information relating to criminal investigations and civil proceedings is exempt under section 30.

This exemption relates to any information that has been held at any time for the purposes of investigation, even where it is later decided from the evidence available that there are insufficient grounds to institute proceedings. [note 10]

Section 30(2) has application to investigatory functions and proceedings carried out by The Service but qualifies the exemption by requiring that the information was obtained from confidential sources – section 30(2)(b). For this reason section 31 provides an alternative that may be used.

The duty to confirm or deny that the information is held does not arise if the information is exempt under sections 30(1) or (2). There is no prejudice test required for this exemption.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE but staff may wish to consult Enforcement Technical before relying on this exemption.

 

81.64  Section 31 - Law enforcement

This section specifically exempts a number of categories of information (which are not exempt by virtue of section 30 and where disclosure would or would be likely to prejudice:

  • the prevention and detection of crime,
  • the prosecution of offenders,
  • the administration of justice, and
  • the assessment or collection of taxes.

Further, section 31 exempts any information which would prejudice the exercise of a public authority’s functions for any of the purposes (amongst others) listed below: [note 11]

  • ascertaining whether any person has failed to comply with the law;
  • ascertaining whether any person is responsible for conduct which is improper;
  • ascertaining whether circumstances justifying regulatory action in pursuance of any enactment exist or may arise; and
  • ascertaining a person’s fitness or competence in relation to the management of companies .

The duty to confirm or deny that the information requested is held need not be applied if to do so would prejudice any of the matters in section 31(1). This exemption requires a prejudice test to be applied.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.65  Section 30 or 31 applicable

Sections 30 and 31 are mutually exclusive. The difference between the two is that section 30 operates by reference to a description of the purposes for which information was obtained, recorded, held and its source, and, in certain cases, what the information relates to. Section 30 implicitly recognises that premature disclosure of investigation material can jeopardise or prejudice that investigation (by virtue of the ‘confidential source’ referred to in section 30(2)(b)) and therefore exempts it from disclosure. Section 31 is an exemption focused on the effects of disclosure on the law enforcement process taking place and requires a prejudice test to be applied which turns on the likely effects of the disclosure following a request for information. Information is only exempted if disclosure would be likely to prejudice the enforcement matter in hand.

 

81.66  Investigatory duty

The Insolvency Service has a duty to investigate the causes of a company’s failure and the conduct and affairs of a bankrupt, where appropriate, with a view to ascertaining whether any proceedings should be brought against a, company officer, partner or bankrupt. Therefore section 31 of the FOIA will be relevant. Where a case has been identified for further investigation, section 31 is relevant to the information obtained and held in consequence of the investigation, the official receiver must consider whether it is in the public interest to disclose such information if requested, and must also apply the prejudice test. This exemption may apply to all matters requiring further investigation including BROs and BRUs. However, this non-absolute exemption should not be applied automatically to all further investigation cases and each request for information should be considered on a case-by-case basis. In addition the official receiver should consider whether his position as statutory office holder provides a more straightforward method to refuse information from his file. If there is any doubt on disclosure in a further enquiry case Enforcement Technical should be consulted.

 

 

81.67  Section 33 – Audit functions

The exemption provided by section 33 is intended to protect the audit role of certain public authorities that have the function of auditing other public authorities or the examination of the economy, and the efficiency or effectiveness with which other public authorities use their resources in discharging their function. It does not therefore cover internal audit functions of The Service. [note 12]

 

81.68  Section 35 – Formulation of government policy

The use of this exemption is determined by the content of the information, in particular that it relates to formulation or development of government policy.

The purpose of section 35 is the protection of internal deliberation processes as it relates to policy making e.g. to allow candid and robust discussion about policy matters without compromising or deterring policy makers from proper deliberation or the exploring of extreme options. [note 13]

Policy is not defined in FOIA but is considered to cover the development of options and priorities for Ministers who determine which options are to be translated into political action. Government policy is distinct from departmental or agency policy and this exemption does not cover operational or administrative matters.

Policy may be sourced or generated from Ministers themselves, manifesto commitments, EU policies, major public concerns expressed through letters/petitions etc. Proposals and evidence that contribute to policy making includes stakeholders, legal advisers, researchers, as well as civil servants and departments. There is no prejudice test required for this exemption.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.69  Section 36 – The effective conduct of public affairs

Some parts of The Service provide information and advice to Ministers and others and rely on maintaining the confidentiality of communications in free and frank advice or exchanges of views in relation to proposed legislation and policy matters. In these circumstances section 36 (2) may be engaged This exemption may apply when the non-absolute exemption provided by section 35 does not apply. [note 14]

For a section 36 exemption to be engaged a ‘qualified person’, as defined under sub-section (5)(o) of the section must determine that in their ‘reasonable opinion’ the exemption applies. Any consideration of this exemption should be referred, through the FOIA/DPA Liaison Officer to the BIS legal team for advice. This exemption requires a prejudice test to be applied.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

 

81.70  Section 39 – Environmental information

Section 39 exempts all information that a public authority is obliged to make available under the provisions of the Environmental Information Regulations 2004. Effectively all requests for environmental information must be dealt with under EIR , which applies the public interest test in the same way as FOIA. EIR is dealt with in detail in Part 6. [note 15]

 

81.71 – Section 40(2) – Personal information (about third parties)

Where the information request is for personal information relating to a third party, it will be exempt if its disclosure would either contravene:

  1. the DPA data protection principles; or
  2. section 10 of the DPA (right to prevent processing likely to cause distress or damage); or
  3. if the person to whom it relates would not have a right of access to it under that Act e.g. if an exemption under DPA could be applied.

The purpose of the section 40(2) exemption is to ensure that the provisions of the DPA are applied and to limit the rights of applicants to access third party personal information, thus ensuring that the rights of data subject are protected. DPA, which has been amended by FOIA, is covered in greater detail in chapter 81A of the Technical manual. There is no prejudice test required for this exemption. [note 16]

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.72  Section 42 – Legal professional privilege

(Amended December 2010)

Section 42 sets [note 17] out the exemption from the right to know if the information is protected by legal professional privilege (LPP) and this claim to privilege could be maintained in legal proceedings. LPP is a common law concept which has been robustly defended by the courts on the ground that it is a fundamental condition on which the administration of justice as a whole rests. There is therefore a strong public interest in maintaining the exemption if LPP can be established.

 

81.73  Categories of LPP

LPP is divided into two categories, being ‘legal advice privilege’ and ‘litigation privilege’.

Legal advice privilege applies if it is made:

  • confidentially; and
  • between a lawyer and client; and
  • where the main purpose is seeking or giving legal advice or assistance.

Litigation privilege applies if it is made:

  • confidentially; and
  • where the main purpose is giving advice in relation to either contemplated or pending litigation.

In general terms the public interest test in maintaining LPP (applying the exemption) will usually be substantial because the legal privilege itself derives from the public interest in maintaining the confidentiality between lawyer and client. The balance in favour of disclosure will only usually apply in exceptional circumstances and where it fails to meet the above criteria. There is no prejudice test required for this exemption.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

It is likely that most cases where this exemption may be considered will relate to enforcement actions (contemplated or taken), and staff should refer to chapter 15.21 of the Enforcement Investigation Guide for further information on applying this exemption.

A template for responding to requests under this section is available HERE.

 

81.74  Section 43 – Commercial interests

There are two non-absolute exemptions available under section 43 used to protect the legitimate interests of business. [note 18]

Section 43(1) applies to trade secrets and for this sub-section there is no requirement to assess any prejudice arising from disclosure.

Section 43(2) provides a more general category of ‘commercial interest’ for commercially sensitive information if the disclosure would, or would be likely to, prejudice someone’s interest (including that of The Service).

Commercial interests are a broader category than trade secrets and can apply to any activity  related to a trade, profession, business, person or organisation.

An organisation’s commercial interest may be prejudiced where for example:

  • disclosure would have a detrimental impact on commercial revenue, or threaten the ability to obtain supplies or credit; or
  • weaken its commercial position in a competitive environment by revealing sensitive information useful to competitors; or
  • damage business reputation or the confidence of customers, suppliers or investors.

Section 43(2) can apply to The Service's own commercially sensitive information, as well as information held by The Service relating to outside organisations. There is no prejudice test required for this exemption.

Further information on this exemption may be found in the ICO awareness guidance HERE. 

A template for responding to requests under this section is available HERE.

 

81.75  Tendering and procurement

This exemption will have a wide application in the area of procurement of goods and services. Some examples where an exemption could apply are:

  • preliminary procurement activities – market research, project and procurement strategy, business objectives and plans;
  • information related to supplier selection – bidder qualification or specification, details of the qualification process, details of qualified bidders;
  • contract negotiation and award – bids, papers, recommendations, the contract, information about the successful bid;
  • contract performance and post-contract activities – implementation, performance, contract amendment with supporting papers, information provided for review by third parties.

In general terms the application of the public interest test to this exemption supports the view that the public interest in disclosure of procurement related information is not sufficiently strong to override the prejudice that would occur to the commercial interests before the award of a contract. However the public interest in making information available after the contract has been awarded is much stronger. Such disclosure may include the total contract value, evaluation of the successful tender, plus fee rates and other information necessary to understand the nature of the services contracted.

Further information on public sector tendering may be found in the ICO awareness guidance HERE. 

 

81.76 – FOIA exemptions and the private sector

The general right of access to information held by The Service will include information held by another party on behalf of The Service (section 3(2)(b)) It does not apply to information held by The Service on behalf of another party (section 3(2)(a)). [note 19]

Information that is held by any third parties on behalf of The Service e.g. agents, solicitors, other government departments, insolvency practitioners etc, must be considered in the same way as information held by The Service when matters of disclosure and application of the exemptions discussed above are considered.

 

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