210 reasons to refuse a Freedom of Information request

The Freedom of Information Act (FOIA) came into full effect on 1st January, giving individuals for the first time a general right of access to information held by public authorities in the course of carrying out their public functions, subject to certain conditions and exemptions.

One of these exemptions relates to legislation, in existence prior to the passing of FOIA, which prohibits the disclosure of information in some way.

In most cases, these prohibitions relate to personal or commercially sensitive information, or information held in fulfilment of an international obligation, which the Government is bound to protect.

However, some information is being held back unnecessarily, and the Department of Constitutional Affairs (DCA) has been conducting a review of the legislation, to identify those enactments that prohibit disclosure under FOIA but that do not fall within one of four categories.

According to the DCA these are:

• Where the prohibition fulfils an international obligation;
• Where the information being protected may be held by a person or an agency not covered by the FOIA;
• Where the information at issue has been compulsorily collected by the public authority; or
• Where the prohibition is limited to specific types of information, and some form of limited access scheme does exist.

Enactments containing prohibitions that fall outside these categories are subject to the Secretary of State’s powers to order the repeal or amendment of the enactment, under FOIA.

The DCA published its “Review of Statutory Prohibitions on Disclosure" last week, finding that 210 statutory provisions prohibited the disclosure of information under the FOIA, and that the Secretary of State had power to amend 183 of these. The review did not consider the legislation in respect of Scottish public authorities, which have their own FOI regime.

According to the review, 13 of the 183 provisions have already been amended under the Freedom of Information (Removal and Relaxation of Statutory Prohibitions on Disclosure of Information) Order 2004, 40 will be amended, 19 will be time limited and another 111 will be retained or are still under review.

Of the 27 provisions that cannot be repealed or amended by the Secretary of State, 20 relate to international confidentiality obligations, and seven were passed after 30th November 2000 – the date on which FOIA received Royal Assent – and cannot be amended under the Act.

A further 238 provisions were considered for potential conflict with FOIA, and ultimately deemed not to be in conflict – 116 of these because they have already been repealed or amended by other legislation.