Our WhatDoTheyKnow.com service makes it really easy to request information from public bodies: all you need to do is describe the information you are seeking, send your request, and the authority provides it to you.
At least, that’s what happens when everything goes smoothly.
The default case
When you request information, the authority generally has two duties under the FOI Act:
- They must confirm or deny whether the information is held
- If they do hold it, they must disclose it.
But, there are circumstances – called exemptions – where the authority can withhold the information, or where they might not even state whether or not they have it at all.
Understanding which exemptions have been applied will also help you to understand what to do next.
The authority have confirmed they hold the information, but refused to release it
Why have they refused?
If your request is refused, the authority must say which exemption/s allow them to do so — have a good read of their response, and find out which one/s have been applied.
You’re looking for a section number that refers to the part of the Act that explains why they can refuse. You can check on FOIwiki’s handy table for the full list of exemptions.
Generally, when citing an exemption, the authority will also include the relevant text from the FOI Act, but if not, you can check it for yourself in the actual wording of the Act.
They did not cite an exemption
Authorities must say which exemption applies to your request — so, double-check that they haven’t done so (look in any attachments as well as in their main email), and once you are certain that they haven’t, write back and ask them to confirm which exemption they are using. Here’s an example of that in action.
If you want to, you can quote the part of the FOI Act which says that they must do this: Section 17 (1)b:
A public authority which, in relation to any request for information, is to any extent relying on […] a claim that information is exempt information must […] give the applicant a notice which—
- states that fact,
- specifies the exemption in question, and
- states (if that would not otherwise be apparent) why the exemption applies.
They did cite an exemption
Once you know which exemption has been used, you are in a good position to examine whether it has been correctly applied .
FOIwiki’s table lists all the exemptions that an authority can use, and includes some technical details about how they can be applied.
Some exemptions have very little room for appeal and the decision to apply them is obvious: for example, the Ministry of Defence won’t release plans for an upcoming battle in a time of war, making a request for this type of information pretty futile.
Others rely much more on the judgement of the authority who’s dealing with your request. Under Section 38, for example, a request can be turned down because it might ‘endanger the physical or mental health of any individual’– but in many cases, assessing how someone’s mental health might be affected by the release of information must require a certain amount of prediction.
Some exemptions allow an authority to use additional tools for assessing whether or not to release information:
- A public interest test
- A prejudice test
They said they’d applied a Public Interest Test
Some exemptions, known as ‘qualified exemptions’, require the authority to apply a Public Interest Test. This may give you more opportunity to ask for a review.
You can check the details of your exemption, and whether it’s qualified, in FOIwiki’s table.
In short, a public interest test sees the authority trying to weigh up the benefit to the general public of the information being released against the safeguards that the exemption is trying to provide, and decide which has more weight. The ICO provide good information about Public Interest Tests, with several examples of how they have been applied in the past.
If you think you can demonstrate that the Public Interest Test has come down on the wrong side of this weighing up exercise, you may want to ask for an internal review — see the end of this article for next steps.
They said they’d applied a Prejudice Test
Some exemptions, called ‘prejudice based’ exemptions, require a prejudice test. Again, this might also give you more opportunity to ask for a review.
You can check the details of your exemption, and whether it’s prejudice-based, on FOIwiki’s table.
Generally speaking, it’s applied to exemptions which seek to protect certain interests — for example, Section 29 of the Act allows exemption where release might do harm to the economy.
The prejudice test is a way for the person dealing with the request to check that the perceived threat is ‘real, actual or of substance’, and that there’s a reasonable risk that the release would cause the harm that the exemption is trying to protect against. There is a good explanation in the ICO guidelines.
As with Public Interest Tests, if you can demonstrate that the Prejudice Test has come up with a decision that is arguably misapplied, you may want to ask for an internal review — see the foot of this article for next steps.
They didn’t apply a Public Interest test
This probably means that the exemption is “absolute”, which makes it hard to challenge.
First, check on FOIwiki’s table that the Section the authority is using is an absolute exemption.
If it is:
- You might like to consider how cut-and-dried it is that the information falls within the class that the exemption protects. If it is clearly covered by the exemption (for example you have asked for information that is self-evidently provided to the authority by Special Forces) then there isn’t much point in going any further. But suppose you have been told that, under Section 21, the information is accessible via other means. Section 21 is an Absolute exemption but may be open to a challenge if, for example, there are circumstances which prevent you from accessing the information.
If it’s not:
- Ask the authority what public interest test they applied (or more details of how they applied it).
The authority won’t confirm or deny whether they hold the information
Why won’t they confirm or deny?
If confirming or denying whether the information is held would actually reveal exempted information in itself, then the authority may refuse to do so.
You can read more about this in the ICO’s guidance.
Can I do anything if they ‘neither confirm nor deny’?
Yes — you can challenge this stance if you have reason to believe that confirming or denying that they hold the information would not reveal exempted information in itself. However, it can be a time-consuming and potentially difficult route to take, and even if you are successful in getting the authority to confirm that they have the information, you may then find that an exemption is then applied, taking you practically back to square one.
If you still want the information you’ve requested, there are some general tactics you can use when faced with an exemption:
- Reduce the scope of your request: Check the exemption cited and, if possible, modify your request to circumvent it.
- Ask for an internal review: if you think the exemption, public interest test or prejudice test has been wrongly applied, you can ask for another member of staff to assess your request and whether you should have received a full, or partial, response.
- Appeal to the ICO: If you’ve had an internal review and still think the decision was wrong, you may make an appeal to the Information Commissioner’s Office.
Read more about all of these routes on our guidance page.
And here are some other useful links from the Information Commissioner’s Office:
- Guidance to authorities on when requests may be refused
- Guidance for writing a refusal notice
- Guidance on the public interest test
Finally, for now
The ideal is, of course, to submit a request which does not trigger an exemption, as clearly this saves everyone’s time. You can see our advice on writing responsible and effective requests here.
That said, full or partial refusals are not an uncommon occurrence — it’s totally routine for FOI responses to have some material removed (usually personal information such as names and roles of junior officials, or material identifying members of the public), or to turn the request down completely.
There are just over 25 exemptions listed in the Act (the exact number depends on how you count subsections and variants), removing the obligation for bodies to provide information in categories as diverse as any and all communications with members of the Royal Family, to commercial interests and trade secrets — and all sorts of things in between.
We’ll be examining the various exemptions available to authorities and suggesting ways in which you can avoid them. Keep an eye on our blog — and we’ll also link to posts from this post as we publish them.
Image: Scott Warman