The Public Interest Test: A Guide

The Public Interest Test is important for freedom of information requests

As providers and managers of Freedom of Information services, we frequently try to drive two cultural changes with our clients.

The first is to respect the role of Freedom of Information (FOI) in terms of transparency and as a route to effective engagement with stakeholders. In fact, we try to encourage a system of proactive publication as part of a publication scheme. Indeed, a confident organisation should not react with suspicion to FOI requests or treat requestors as an enemy.

The second is to have a more sophisticated understanding of the exceptions to releasing information, and how to apply them.

_______________________________________________________________________________________

________________________________________________________________________________________________

In particular, there is a tendency to forget to apply the public interest test when considering information should be withheld in some circumstances.

There are two types of exemptions. Absolute or class-based exemptions apply when a certain class of information is always exempt from disclosure. Prejudice based exemptions apply when information may be exempt from disclosure if that would create such prejudice it would be more in the public interest to withhold it than to release it. Prejudice based exemptions are when the public interest test applies.

In this article we discuss the public interest test, when it applies, and explore how to get it right.

Contents

• introduction to the public interest test

• when do we need to consider the public interest test?

• factors to consider when applying the public interest test

• Example: prejudice to commercial interests

• What Happens if Requester’s Object?

Introduction to the Public Interest Test

Start with the assumption that the release of information on request, as required by the FOI Act, is always in the public interest. That is the point of the Act after all.

However in many instances where there may be a legitimate interest in withholding the information. That means you have to decide what serves the public interest more – disclosing the information, or applying an exemption.

That, at its core, is what the public interest test is about. Deciding what serves the public interest more: disclosure or withholding information.

One of the main ways public authorities get this wrong is that, if they decide it is more in the public interest with withhold information, they must be able to explain their reasons to requester.

 When Do We Need to Consider the Public Interest Test?

As discussed above some exemptions to disclosure are prejudice based. Examples of those exemptions include:

If you receive a request for any information that falls under the headings above you may need to consider the public interest test. That means balancing the absolute good of disclosing the information that has been requested against the public interest of withholding it.

Factors to Consider When Applying the Public Interest

We’ll start with something you should not consider, which is why the requester wants the information. Whatever the reasons someone wants information are known as their “private interests” and they are not relevant to the public interest test. For example a student may ask for information in order to complete a project or some research. That does not matter for the purposes of the public interest test.

Another thing you should not consider is if it disclosure is in the public interest. A core principle of the Freedom of Information Act is that is is always in the public interest to disclosure.

Imagine a see-saw that is already weighed down at one end. The public interest test asks if there is enough weight to apply to the other end that it tilts against disclosure.

On a case by case basis the things you should consider are:

• can we identify a prejudice what would occur, or would be likely to occur if we disclosed the information?

• would the seriousness of the prejudicial effect be so serious it is more in the public interest to refuse to share the information?

• can we explain the prejudicial effect in a way that a person would accept it as reasonable grounds for withholding the information?

Would or Would Be Likely To

What does the phrase “would or would be likely to” mean? The phrase appears in the Act and in the guidance on freedom of information produced by the Information Commissioner. As its core it means there is a realistic prospect of the identified prejudice happening. You do not have to provide evidence of the likelihood, and you do not have to be certain that it will happen. But you do need to have – and show – substantial grounds that a prejudice could occur.

Let’s look at an example of how this might work.

________________________________________________________________________________________________

Prejudice to Commercial Interests

 Section 43(2) of the FOI Act reads

“Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)”.

Quite often public authorities get requests for information about how much they spend on a particular product or service. Clearly information about how organisations spend public money, and how much, is in the public interest. So when would disclosing it be exempt?

There are a number of public interest arguments for why requested financial information might be exempt:

• it may be time for a product or service to go out for tender and releasing information now could adversely affect that tender exercise

• revealing how much you pay for a product or service may prevent you getting better value in the future

• you may have entered into a bespoke arrangement with a provider for e.g. a special discount that the provider wants to keep secret so other clients do not expect the same

Refusing information on the basis of this exemption requires the organisation to show that the prejudice exists, and it would have a material effect. It must also show it has weighed up the pros of releasing the information as well as the cons.

This especially important if your decision not to disclose is challenged. It also means whoever conducts an internal review (the first stage of a challenge by requestors to your decision) can then see your thinking.

Ultimately you need to be confident you have taken a reasonable and proportionate decision; and your decision making process can be demonstrated to and understood by the Information Commissioner.

What Happens if Requester’s Object?

Naturally refusing to disclose information because of the public interest test will disappoint a requester. Under those circumstances they may request and internal review of your decision, or complain to the Information Commissioner.

The requester may give arguments against the prejudice you have identified. However, if they rely on their private interests – simply why they personally want the information – then there would be no reason to change your mind.

Similarly if the requester does complain to the Information Commissioner then so long as you have been able to explain the prejudice you have identified, and the effect it would have, then there would be no reasonable grounds to overturn your decision to refuse disclosure of the information.

________________________________________________________________________________________________