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

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  A separate CPU Guidance Note 13 should be reviewed in tandem with this section of the manual in considering records which relate to security, defence and international relations.
  

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  Section 20 provides for delegation of decision-making on FOI requests. It is strongly recommended that FOI decisions on sensitive material likely to fall under this section should be taken only at a senior level. Delegations under section 20 should provide accordingly.
  

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  This section should be read in conjunction with section 42(m) which excludes from the Act material which discloses the identity of a confidential source of information in relation to the enforcement or administration of the law.
  

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  Where release of information is likely to have consequences for State security, defence or international relations or Northern Ireland matters or where a decision maker is unsure if a record is one to which a mandatory exemption under subsection (2) or subsection (3) applies, informal consultations with the public body having principal responsibility in that area should be undertaken e.g. if disclosure of a document is likely to affect international relations, the decision maker should seek the views of the Department of Foreign Affairs and Trade.
  

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  Section 34 outlines a Ministerial Certificate procedure which may be considered where the records in question are of such seriousness or sensitivity to warrant doing so.
  

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  Where sensitive information requires protection, consideration should be given to invoking the ‘refusal to confirm or deny’ provision in preference to a Certificate. The issue of a Certificate may attract attention to the existence of sensitive material.
  

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  Section 33 should be read in conjunction with section 35 (Information obtained in confidence).
  

(ii) the Minister must personally, in addition, be satisfied that the record is of sufficient sensitivity or seriousness to justify him/her putting the material beyond the scope of the normal procedures of the Act, including review by the Information Commissioner.

Where a certificate is in place, no internal appeal under section 21, or appeal to the Information Commissioner can be made. Instead review of the matter can be undertaken by certain other members of the Government, or separately, by the High Court
The section sets out the arrangements under which certificates are issued, authenticated, appealed, reviewed and revoked.
8.1 When should section 34 be considered?
Section 34 should be considered in rare and exceptional circumstances. A certificate represents a ministerial decision to effectively take certain records out of the scope of the review provisions of the Act on the basis of the extreme sensitivity or seriousness of the records involved. Such a decision can only be taken where it is clear that the Act’s other provisions are not sufficient having regard to the sensitivity or seriousness of records exempt under section 32 or 33.
In this context, it should be borne in mind that the normal provisions of the Act ensure no less than four levels of defence against access to exempt records:
(i) Where exempt information is the subject of an FOI request, an FOI body can directly refuse access to
(a) the initial request, and

(b) any subsequent internal appeal.

This subsection sets out the circumstances and procedures under which certificates would be issued by Ministers of the Government for their Departments or other FOI bodies under their aegis.

1. 
   The Minister, or the head of an FOI body (in the case of a body which is not a Government department) must be satisfied that the record is exempt under section 32 or 33 of the Act. This requires appropriate examination of the record involved, its careful assessment against the relevant provision of either of those sections, and a well-founded conclusion that the record is indeed exempt.
   

2. 
   The exempt record must be of sufficient sensitivity or seriousness to justify taking it out of the normal procedures of the Act, Essentially, this means that a record must be of enough gravity, or require such a level of carefulness in its handling, that it warrants being removed from the normal processes of the Act.
   

3. 
   The Minister must be personally satisfied that (ii) applies, both in relation to a record of his/her own department, or that of an FOI body in relation to which s/he exercises functions. In the case of the latter, a Minister can only issue a certificate where s/he has been actually requested in writing (or such other form as may be determined) to do so by the head of the FOI body concerned.
   

4. 
   The Minister must personally issue the certificate.
   

Arising from subsection (2) a certificate can be issued at any time from:

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  when an FOI request is received until
  
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  the end of the period for giving a decision under internal review.
  

This affords an FOI body a considerable timeframe within which to consider the issues before resorting to a certificate. It enables a public body to issue a refusal under section 13 without the need for a certificate. It facilitates further consideration of the issues involved over a three week period in the event of an internal review

This subsection provides that, while a certificate is in force, the record to which it relates shall be deemed conclusively to be an exempt record. No internal review under section 21, or review by the Information Commissioner of the decision to refuse access to the record is admissible while such a certificate is in force.

This provision details the items to be listed i.e.

(i) the original request;

(ii) the specific exemption provision by which the record is exempt (the particular subsection of section 32 or 33, as appropriate, should be quoted);

(iii) the date on which the certificate is signed by the Minister and the date on which it will expire;

5. 
   the name of the requester, and
   
6. 
   the issuing Minister's signature.