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Public interest test
Absolute and qualified exemptions
The Freedom of Information Act contains exemptions from the right of access to information to balance the right to know with the delivery of effective government. Some exemptions are 'absolute', that is, if the exemption applies then there is no obligation under the Act to release the requested information (although there may be scope, or obligations, for other reasons outside the Act to do so). The absolute exemptions are listed in section 2(3) of Freedom of Information Act.
Other exemptions are subject to an assessment of the balance of the public interest for and against disclosure; these exemptions are often referred to as 'qualified', because they do not justify withholding information unless, on a proper assessment, the balance of the public interest is against disclosure.
Where a qualified exemption applies to information that has been requested, public authorities are required to carry out a 'public interest test'. This requires weighing the public interest considerations in favour of release of the information and the public interest considerations in favour of protecting it from disclosure. If the public interest in withholding the information outweighs the public interest in disclosure, it should be withheld.
General and special public interest in disclosure
The starting point in considering the balance of the public interest is that there is a general public interest in disclosure. The existence of the Freedom of Information Act, and other access regimes, is testimony to that. In contrast, there is no general public interest in non-disclosure.
In the case of any particular qualified exemption, and the disclosure of any particular piece of information falling within it, there may well also be particular or special public interest considerations in favour of disclosure. For example, there may be a public interest in the transparency of particular process, such as in law enforcement.
However, the right to know must be balanced against the need to enable effective government. Therefore, for each qualified exemption there may be particular public interest considerations in favour of refusing the request.
The terms of the exemptions in the Act give broad clues to what those particular public interest considerations might be (some, such as section 36, give more specific indications of the relevant public interest considerations likely to be engaged). However, it is not sufficient simply to assert a public interest in non-disclosure. The relevance of the particular considerations to the circumstances of an individual request and the assessment of the balance of the public interest which has been carried out must be properly analysed and supported. The detailed guidance on exemptions sets out the types of public interest considerations that are likely to be relevant in the context of considering the use of each exemption.
The public interest test need not focus solely on the particular considerations relevant to the specific exemption(s) engaged. Section 2(2) requires that 'all the circumstances of the case' should be taken in to account when determining whether to maintain a qualified exemption. Therefore, in considering a request for information that engages section 29 (the economy), any damage to the UK's economic interests resulting from disclosure would be considered, but wider considerations, such as any potential prejudice to the free and frank exchange of views, should also be taken into account.
A decision, on the balance of the public interest, not to disclose is subject to challenge by applicants who may ask the Information Commissioner to review the decision to withhold information. Ultimately, this could also become a matter for the courts. The Act does not make government the sole, or supreme, arbiter of the public interest. However, the better the decision-making on the public interest, the better it will withstand such challenge.
The assessment of the balance of the public interest will change over time. This is so in two ways. The assessment of the public interest is a judgement in which fact, policy and law are all involved to some degree. It is inherently dynamic. The law and practice of the public interest balance will develop in decisions made within government, the Tribunal and the courts.
Furthermore, the balance of the public interest may shift as the information becomes older. In any case, many qualified exemptions may not be used when the information is more than 30 years old. The application of Freedom of Information Act to 'historical records' (that is, those over 30 years old) and records that have been transferred to the Public Records Office or other places of deposit is governed by sections 62 to 67 of the Freedom of Information Act.
The balance of the public interest therefore needs to be reviewed afresh in response to new requests for the information. Judgements about disclosure are not about whether it should take place in a general sense but whether it is appropriate for it to happen at the particular time that a request is received.
The Act makes specific procedural provision for the handling of cases which require an assessment of the balance of the public interest to be made. Under section 10(1) of the Act, there is a general time limit of 20 working days for making a response to a request for information. However, section 10(3) permits a public authority to take an additional, though 'reasonable', period of time to reach its final decision in those cases where a 'qualified' exemption is engaged and the balance of the public interest must be assessed.
The department must, however, tell the applicant within the initial 20-day period which exemption or exemptions it believes apply to the information requested, and give an estimate of the date by which the decision will have been made. Such extensions should generally avoid exceeding 20 working days. Where you wish to rely on section 36, a 'qualified person' must form the 'reasonable opinion' that the exemption applies.
