Data Governance Atlas UK edition

What is the public interest test in FOI?

For qualified exemptions, information can be withheld only if the public interest in maintaining the exemption outweighs the public interest in disclosure. Under the EIR every exception is qualified, and the balance starts with a presumption in favour of disclosure.

Freedom of information

What it is

FOIA exemptions are absolute or qualified. Absolute exemptions, such as information supplied by security bodies or personal data where disclosure would breach the data protection principles, need no balancing. Qualified exemptions, such as prejudice to commercial interests or the formulation of government policy, require the authority to weigh the arguments on both sides at the time of the request.

When it applies

  • When a qualified FOIA exemption is engaged. FOIA s.2(2)(b)
  • For every EIR exception, with a presumption in favour of disclosure. EIR reg 12(1)-(2)
  • For FOISA, when a non-absolute exemption applies. FOISA s.2(1)(b)

When it does not

  • Absolute exemptions listed in FOIA s.2(3), such as ss.21, 23, 32, 34, 40 (in part), 41 and 44. FOIA s.2(3)

Who is responsible

The authority, which must set out its reasoning in the refusal notice.

What it involves

  1. Identify the exemption and whether it is qualified.
  2. List the public interest factors for and against disclosure.
  3. Weigh them at the time of the request.
  4. Explain the outcome in the refusal notice.

Timing

Within 20 working days, or a reasonable extension where the public interest needs more time, which guidance says should normally be no more than a further 20 working days.

If it goes wrong

Regulatory
The requester can complain to the regulator, which issues a decision notice requiring the authority to act. Either side can appeal to the First-tier Tribunal (General Regulatory Chamber), then on a point of law to the Upper Tribunal. Failing to comply with a notice can be certified to the High Court and dealt with as contempt.
Criminal
No offence for getting the balance wrong.
Civil
No right to compensation. Enforcement runs through the regulator and the tribunal.

More on freedom of information and environmental information

Sources

Updated