Introduction

The FOIA is intended to promote the disclosure of information. Ironically, though, any attempt to explain its working inevitably tends to focus on the various methods for refusing to do so. This is true whatever the author's agenda or interest.

This is not because the FOIA is really designed to obstruct access to information, whatever the most cynical commentators may say. It is because releasing information under the FOIA is relatively straightforward. If all the requested information is being disclosed, no more legal justification is required than the duty spelt out at s. 1.

If an authority wishes to depart from this duty, it is more difficult. Any attempt to refuse a request under the FOIA must be justified. This is true of the reasons for refusal already discussed in Chapter 2. If refusing on cost grounds, the reasoning must be outlined. It must be possible to explain – if not to the applicant, certainly to the Information Commissioner – why a request is considered vexatious. It is also true when other reasons must be found to refuse a request. These other reasons are called exemptions and can be found in Part II of the Act.

Some of these exemptions are very complex to apply. Added to the complexity of the drafting, nearly 15 years of case law has occasionally clarified, but more often complicated, our understanding of these provisions.

FOI officers must be able to advise their colleagues and where necessary apply these exemptions. Doing so successfully may be the key test of the practitioner's proficiency for many colleagues.

The FOIA is not alone in identifying the circumstances in which requests may be refused. Other FOI laws contain exemptions – broadly similar in coverage to those in the UK's Act.

Exemptions – some terminology

Before looking at the individual exemptions, it is important to be familiar with some of the terminology.

Section 2 of the Act establishes the concept of ‘absolute’ and ‘qualified’ exemptions. Any exemption that is ‘qualified’ is subject to a public interest test; even if the information falls within the exemption, it might still be disclosed if the public interest in disclosing it outweighs the public interest in withholding it. Most exemptions are qualified. A more detailed explanation of the public interest test is provided later in this chapter.