Freedom of Information Decision Makers Manual Part 2: Exemptions & Consultation Procedures

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  Ensuring the resources of the taxpayer are used efficiently and effectively.
  
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  Enabling the public to assess the merits and shortcomings of policies, practices etc.
  
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  The importance of the disclosure of records on issues affecting the community,
  
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  The need to disclose where Government bodies have failed to act in a lawful and accountable way,
  
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  The need for effective mechanisms to maintain public confidence in Government bodies by access to information on their performance of functions
  

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  Vital interests of the community are served by effective law enforcement and administration,
  
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  Damage to investigations, or processes etc. which might result,
  
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  Importance of not disadvantaging Government bodies in their discharge of key responsibilities,
  
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  Importance of not releasing information which would facilitate committing offences.
  

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  Section 32 should be read in conjunction with section 30 (Functions and negotiations of FOI bodies) and section 35 (Information in Confidence)
  

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  FOI bodies should bear in mind that records, the disclosure of which could reasonably be expected to lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement of criminal law, are entirely outside the scope of the Act (S42(m)).
  

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  The revelation in a decision of fears that the requester may inflict violence, or cause damage to property, may be as damaging as the release of the records in question. Reliance on the refusal to confirm or deny provision contained in subsection (2) may be more appropriate in such cases. Consideration may also be given in appropriate cases to releasing the record to a health professional pursuant to sections 37(3) and 37(7) of the Act.
  

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  the security of the State
  
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  the defence of the State
  
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  matters relating to Northern Ireland or
  
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  International relations.
  

Traditionally the area of security, defence and international relations has attracted a high level of protection in Freedom of Information legislation. This level of protection is reflected in the following aspects of the section:

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  no public interest test
  
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  refusal to confirm or deny provision
  
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  ministerial certificate (section 34)
  
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  mandatory exemption for classes of records in part in subsection (2) and fully in subsection (3))
  

The strength of these protections do not relieve the decision maker of the obligation to assess the effects of disclosure in cases to which section 33(1) applies and to explain, where appropriate, how release of the records in question will adversely affect one of the interests outlined in that subsection. It is to be expected that decisions on FOI requests relating to this type of material will only be taken at a senior level.

Subsection (1) provides that information may be protected if it could reasonably be expected to affect adversely the security of the State, defence of the State, matters relating to Northern Ireland or international relations of the State. It is a discretionary exemption so the decision maker must consider the harm that would arise in releasing records to which subsection (1) applies in assessing whether it would cause an adverse affect.

This exemption is designed to protect records such as:-

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  contacts between the Government or its representatives and parties or persons either within or outside of Northern Ireland on matters relating to Northern Ireland
  
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  confidential information received
  
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  intelligence information relating to security and defence matters and international relations
  

Subsection (2) is split with certain classes of records (communications) enjoying a discretionary protection and being subject to release unless it is determined that their release would adversely affect any the areas listed in subsection (1).

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  create difficulty in the conduct of relations between this country and other States.
  
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  disclose positions or plans which could impede or weaken its negotiating strategy with other States or organisations of States.
  
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  substantially impair good working relationships between this country and another State, thereby prejudicing the future supply of information required for the effective conduct of our foreign policy.
  

A mandatory refusal applies to some classes of communications as outlined in (b)(i) and (ii), namely where the information:-

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  was communicated in confidence,
  
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  relates to international negotiations or is information the release of which is prohibited by another state;
  
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  contains analysis, opinions, advice or recommendations and the decision maker considers that the release of such information could reasonably be expected to adversely affect the international relations of the state.
  

The following classes of record must be considered exempt in accordance with subsection (3)(a) or (b):

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  A record containing information that was obtained or prepared for the purposes of intelligence or the security or defence of the State;
  
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  A record that relates to the detection, prevention, or suppression of activities calculated or tending to undermine the public order or authority of the State (which expression has the same meaning as in section 2 of the Offences against the State Act 1939)
  

The following classes of record must be considered exempt in accordance with subsection (3)(c):

This provision protects information communicated in confidence whose disclosure would adversely affect any of the interests referred to in subsection (1). The information must be inherently confidential and imparted in circumstances importing an obligation of confidence (please refer to section 35 for a more detailed discussion on the obligation of confidence). In addition, this section also protects information communicated in confidence relating to the protection of human rights.
7.1.2 Section (3)(c)(ii)


Information communicated in confidence from, to, or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union, or relates to negotiations between the State and such an organisation, organ, institution or within or in relation to such an organisation, organ, institution or body, or is a record of such a body containing information the disclosure of which is prohibited by the organisation, organ, institution or body

This provision applies to information:

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  communicated in confidence to or within an international organisation of states or a subsidiary organ of such an organisation,
  
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  communicated in confidence to or within an institution or body of the European Union, or
  
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  relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body,
  
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  refers to information which is prohibited from disclosure by any of the international organisations referred to above.
  

The elements of confidence referred to above in relation to paragraph (c)(i) also apply to confidential information coming within this subsection.

7.3.1.1 Section (3)(c)(iii)

In seven exemptions, provisions exist that allow a public body to respond to requests or parts of requests on the basis of refusing to confirm or deny the existence of records - sections 28, 31, 32, 35, 36, 37, and subsection (4) above refer. These provisions are necessary because, in some instances, merely confirming the existence of information will directly or implicitly disclose sensitive information. The following points should be noted in relation to such provisions:

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  Their use will be justified only in rare situations
  
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  It is not appropriate where it is the contents of the record rather than its existence that warrants protection
  
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  Persons should always be advised of their rights of appeal when notifying them of such a decision
  

This refusal to confirm or deny provision, which is subject to particular criteria, gives the FOI body the option of responding to a request in an equivocal fashion and thus not “giving the game away”. By not confirming that a record exists or does not exist, a requester can be prevented from drawing inferences which might otherwise be available. Such a response is justifiable in this section on the grounds that disclosure of the existence or non-existence of the record would have the precise adverse effect which this exemption seeks to avoid.

A requester seeks material which is a mix of records, some of which may be subject to the “confirm or deny” provision, and others which may not. For example a taxpayer seeks access to her tax files. Unknown to her these include records relating to an ongoing highly confidential investigation of a serious criminal matter. In an instance such as this the public body may need to consider remaining entirely silent about the investigation. This is justified by section 13(5) of the Act which states that a statement of reasons need not include any information which is itself exempt. The approach should be employed only in cases of extreme sensitivity.

A requester directly asks for extremely sensitive material the disclosure of which would have the effect of causing damage to matters which the exemption seeks to protect. The options here are either the direct use, or a refusal to confirm or deny response in relation to the request, or a response on the lines of “the department has no records which fall within the ambit of the Act”. Depending on the circumstances, it may be equally beneficial to invoke upfront the neither confirm nor deny provision e.g. a request for records which seeks to ascertain whether a meeting between certain parties has taken place.

A significant criminal investigation is underway and at a particularly sensitive stage. The subject matter suspects that an investigation is underway. He/she asks for the records and other matters relating to him/herself. Here the request for the other material should be treated as per normal. The refusal to confirm provision or a variation thereof, as set out at scenarios (1) and (2) above, should be used to refuse a request for the investigation records.