What are FOI exemptions? The Freedom of Information Act 2000 (FOIA) promotes transparency and accountability within the United Kingdom. It empowers citizens with the right to access information held by public authorities. However, the FOIA also recognises that certain types of information must be shielded from public scrutiny to safeguard critical interests.
This is where absolute exemptions come into play. Absolute exemptions, also called class based exemptions, do not require a public interest test because they relate to the class of information, not the content. Once a piece of information falls under an absolute exemption, there is no obligation to release it, regardless of whether public interest favours disclosure or withholding.
Contents
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Introduction to FOI Exemptions
Under the Freedom of Information Act anyone can ask public authorities for information they hold. In most cases they can expect to get the information, if the public authority has it, within 20 working days and free of charge.
The Act itself contains a number of circumstances where public authorities can refuse to provide the requested information. These are called exemptions.
There are two types of exemptions:
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Absolute exemptions, also known as class-based exemptions.
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Prejudice Based exemptions, also known as public interest exemptions.
Absolute exemptions apply to certain classes of information that is always exempt from disclosure regardless of the content. Prejudice based exemptions can only apply if the public interest test is applied and the public authority can show it is more in the public interest to withhold the information rather than disclose it.
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read our guide to the Public Interest Test here.
There are a relatively small number of absolute exemptions and we will discuss each of them in turn. The section number before the name of each relevant exemption is the section of the FOI Act that sets the exemption out. We use this because people will often talk of a “section 21 exemption” rather than “information accessible by other means exemption”.
Absolute Exemptions
Section 21: Information Accessible by Other Means
One of the fundamental principles of FOIA is that it should not be used to duplicate information that is already readily available to the applicant through other means. Section 21 of the Act reflects this principle. This exemption applies when the requested information is already reasonably accessible to the applicant through sources like publications, websites, or their own knowledge. It ensures that public authorities are not burdened with providing information that can be easily obtained elsewhere.
Available by other means does not mean instantly accessible or free of charge. For example you may need to make an appointment to view the information or incur costs travelling to where it is.
Section 23: Information from Bodies Dealing with Security Matters
In matters of national security, the utmost caution is exercised. Section 23 of FOIA is designed to protect information supplied by or relating to bodies dealing with security matters. This includes intelligence services and other entities involved in safeguarding the nation. Disclosing such information could compromise ongoing operations, intelligence sources, or sensitive diplomatic relations, making this exemption crucial in preserving national security.
Section 32: Protection of Court Records
Section 32 recognises the need to protect the integrity of court records. This exemption applies to court-related information, such as transcripts, judgments, and other records. Disclosing such information without proper context or authorisation could lead to misinterpretations or misuse, potentially undermining the judicial process. By exempting court records, FOIA maintains the integrity of the legal system.
Section 34: Safeguarding Parliamentary Privilege
Parliamentary privilege is a cornerstone of democratic governance. Section 34 of FOIA safeguards information covered by parliamentary privilege. This includes speeches, debates, and discussions within Parliament. Protecting parliamentary privilege ensures that legislators can engage in candid and robust discussions without fear of public exposure, facilitating effective governance.
The reason for this is because Parliament is sovereign which means there cannot be legislation that controls or overrules it.
Section 36: Preventing Prejudice to Effective Conduct of Public Affairs
Section 36 recognises that certain information, if disclosed, could prejudice the effective conduct of public affairs. This exemption applies to information held by the Houses of Lords and Commons. It ensures that information related to future government policy, decision-making processes, or sensitive deliberations is shielded from public scrutiny to maintain the integrity of public affairs.
Unlike other exemptions a Section 36 exemption can also apply to other public authorities but apart from Parliament the exemption is prejudice based.
Section 37: Communications with the Royal Family
The information relates to information relating to communications with the royal family and information on awarding honours. This exemption is absolute in relation to communications with the monarch, the heir to the throne, and the second in line of succession to the throne – so the King, the Prince of Wales, and his eldest child.
Section 40: Safeguarding Personal Information
Section 40 of FOIA exempts the disclosure of personal information about the requester. This exemption applies to information concerning that person, such as their contact details, medical records, employment history, and more.
The reason for this exemption is that people have another route for accessing information about themselves. They can make a subject access request under the Data Protection Act.
Interestingly this exemption does not apply to information about other people.
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You can read more about FOI and releasing personal information here.
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Section 41: Information Provided in Confidence
This exemption is more complex because issues around confidence and confidentiality need to be clear when the information requested has been received by the public authority.
For this exemption to apply:
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the information must have been received by the public authority rather then generated internally.
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the source of the information has a genuine non-trivial reason for it to remain confidential
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either the source has imposed conditions of confidentiality or the need for confidentiality is obvious from the content.
The obligations around confidence cease to apply if the information goes into the public domain or becomes accessible by other means. Personal data may fall under a section 41 exemption if a section 40 exemption doesn’t apply.
Legal advice is not automatically exempted under this section of the Act.
Section 44: Prohibition on Disclosure
The last of the absolute FOI exemptions covers information that should not be disclosed because another law that restricts sharing the information applies. This means the information is exempt information if sharing it would breach some other law.
It is also exempt information if disclosing it would constitute contempt of court. For example disclosing information about ongoing legal proceedings could be contempt of court.
What to Do if you Apply an Absolute Exemption
Most organisations subject to FOI will only be able to apply a small number of these exemptions. When refusing to provide the information requested based on one or more of these exemptions you should issue a refusal notice, explaining that you will not be releasing the information and explaining the exemption(s) you are relying on.
In some instances you may be required to confirm or deny whether you hold the information requested. This is needed if you are applying a section 21 exemption. You do not have to confirm or deny whether you have the information if a section 23 or a section 32 exemption applies. In other cases you should consider whether confirming or denying you hold the information might reveal information that itself is exempt.
Regardless of whether you apply an exemption you must respond within the statutory time limit, of 20 working days from the date you received the request.
Remember: you are not limited to applying only one exemption when you refuse to provide information requested. For example a section 40 and a section 41 exemption could apply to the same request. In many cases multiple exemptions can be applied to requests.
What if the Requestor is Unhappy?
If someone is unhappy with your refusal notice they can complain. In the first instance they should complain to the public authority and ask them to do an internal review of their decision not to disclose.
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read our guidance on how to handle an internal review here.
If the requestor remains unhappy they can complain to the Information Commissioner, who may after investigating the complaint direct the public authority to release the information.
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Conclusion
In conclusion, absolute exemptions under the Freedom of Information Act 2000 serve as vital safeguards to protect critical interests, including national security, privacy, and the integrity of democratic processes. While FOIA promotes transparency, it also recognises the need to strike a balance by shielding specific categories of information from public disclosure, ensuring the responsible and secure management of sensitive data.