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Exemptions from Freedom of Information Act

While the Freedom of Information Act creates a right to request specific information held by the public bodies, it also creates a number of exemptions from that right. The exemptions have the effect of permitting public authorities to withhold some or all of the information requested, where that information fits the terms of one or more of the exemptions.

Certain exemptions only apply where pressing public interest arguments can be made for withholding the information. In other words, information that falls into a particular exemption category (for example information that is intended for future publication) will nevertheless have to be disclosed unless it can be successfully argued that the public interest in withholding it is greater than the public interest in releasing it.  These exemptions are known as 'qualified' exemptions.

A number of other exemptions known as 'absolute' exemptions do not contain the above requirement. Where information falls within the terms of an absolute exemption, the Council may withhold the information without considering any public interest arguments.

Exemptions where the public interest test applies ('Qualified' Exemptions)

The Qualified Exemptions most likely to be applicable to the Council are:

Section 22 - This applies where the Council plans to publish the information in the future and it is reasonable , at the time of the request, not to disclose it until then.

Section 29 - Information prejudicial to the economic or financial interest of any administration in the UK. This applies to information which if disclosed would be likely to prejudice the economic interests of the Council

Section 30 - Investigations/proceedings conducted by public authorities. This applies to information relevant to criminal investigations and proceedings and information obtained for criminal or civil proceedings.

Section 31 - Law enforcement. This applies to a range of investigations and covers, for example information that could prejudice the prevention of or detection of crime.

Section 36 - Prejudicial to the effective conduct of public affairs. This information can only be applied by a Minister of the Crown or a person authorised by a Minister.

Section 38 - Health and Safety. This applies to information that would, or would be likely to endanger the physical or mental health or safety of an individual.

Section 39 - Environmental information (this can be accessed instead through the Environmental Information Regulations).

Section 40 - Personal information concerning a third party. Neither will information be disclosed if it would breach the Data Protection Act.

Section 42 - Legal Professional privilege. This applies where a claim to legal professional privilege could be maintained in legal proceedings.

Section 43 - Commercial interests. This exemption applies to information, the disclosure of which would, or would likely to, prejudice the commercial interest of any person or authority. This would include the Borough Council.

Exemptions where the public interest test does not apply ('Absolute' Exemptions)

The Qualified Exemptions most likely to be applicable to the Council are:

Section 21 - Information accessible to the applicant by other means.

Section 32 - Information contained in Courts records etc.

Section 40 - Personal information where the applicant is the subject of the information. The applicant already has the right of access under the Data Protection Act.

Section 41 - Information provided in confidence where disclosure would involve a breach of that confidence.

Section 44 - Information that is prohibited from disclosure by law. This applies where a disclosure is prohibited by other legislation or would constitute a contempt of court.


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