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.
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
- Identify the exemption and whether it is qualified.
- List the public interest factors for and against disclosure.
- Weigh them at the time of the request.
- 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.
Go further
- The law
- FOIA 2000, EIR 2004, FOISA 2002
- Procedures
- FOI request response (FOIA 2000)
- Glossary
- Public interest test, Prejudice test
More on freedom of information and environmental information
- What is a freedom of information request, and how long does an authority have?
- Who counts as a public authority for FOI and the EIR?
- What is environmental information, and when do the EIR apply instead of FOI?
- What does "neither confirm nor deny" mean?
- When can an authority refuse an FOI request on cost?
- What is a vexatious request?
- What is an internal review, and when must an authority carry one out?
- What is a publication scheme, and who needs one?
- Does FOIA or FOISA apply to a Scottish body?
- How do you complain or appeal about an FOI response?
Sources
- Primary Freedom of Information Act 2000, section 2 legislation.gov.uk
- Primary Environmental Information Regulations 2004, regulation 12 legislation.gov.uk
- Primary Freedom of Information (Scotland) Act 2002, section 2 legislation.gov.uk
Updated