387_04 requests for information – exemptions and the ...€¦ · web viewthe public interest...

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Chris Jarvis

Lorna Petersen

What’s this document about?

To provide a summary of the main exemptions that can be applied to a request for information.

Who does this apply to?

All staff involved in providing information who need to be aware of exemptions and the need to balance openness with confidentiality.

Contents There’s a detailed table of contents on the next page.Introduction 2The exemptions 5The public interest test 19Table of exemptions 26Related documents 27

Doc No 387_04 Version 2 Last printed 22/05/23 of 27

Requests for information – Exemptions and the Public Interest Test

Operational instruction 387_04 Issued 17/08/09

Detailed table of contents

Contents Introduction 3The exemptions 5

It's not information 5

We don’t hold the information 6

It’s manifestly unreasonable 7

It’s too general 8

Drafts and private thinking 9

Drafts 9

Internal communications 10

Confidential proceedings of a public authority 11

Commercial confidentiality 11

Volunteered confidential information 13

International relations, public safety and national security 14

Legal proceedings and investigations 16

If there’s a threat to the environment 16

Intellectual property rights 17

The information is personal 17

Subject access requests 17

Someone else’s personal information 18

Other rules of law 19

The requester has not paid 19

The public interest test 19Overview 19

Factors in favour of disclosure 20

Factors in favour of withholding 21

Table of exemptions 26Related documents 27


Introduction

Definition: exemptions

The Freedom of Information Act (FOIA) and the associated Environmental Information Regulations (EIR) operate on a presumption of disclosure unless there are good reasons to do otherwise. These ‘good reasons’ are referred to as exemptions.

What the legislation states

EIR Regulation 12(1)(a): ‘subject to……………..a public authority may refuse to disclose environmental information requested if an exemption to disclosure applies under paragraphs (4) or (5); and(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.’

EIR Regulation 12(2)‘A public authority shall apply a presumption in favour of disclosure.’

What we cover here

As most of the information that we hold is ‘environmental information’ – see Glossary – we have summarised here the exceptions that fall under the Environmental Information Regulations. In the Table of exemptions, there is a table of all the exemptions available under both FOIA and EIR.

What to do Always seek further advice from the Information Access team or the Information Law Unit as soon as you think an exemption to release under FOIA or EIR may apply.

In almost all cases where an exemption does apply, we need to balance the public interest in applying the exemption against the public interest in disclosure :

To refuse a request, see 399_04 Guidance on Refusing a request for information.

! ImportantInformation about emissions

Where the requested information relates to emissions to the environment, some of the exemptions do not apply. EIR Regulation 12 (9) ‘To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exemption referred to in paragraphs (5)(d) to (g).’

The exemptions that cannot be applied to information about emissions are Regulations 12(5)(d) public authority proceedings, (e) commercial confidentiality, (f) volunteered information and (g) harm to the environment.

(See Policy Advice Note: The Overriding of Certain Confidentialities when the Request relates to information on emissions)


http://intranet.ea.gov/static/documents/Policy/PAN8_emissions.doc


http://intranet.ea.gov/ams_document_library/icontent/DocDir43/399_04.doc


http://intranet/ams_document_library/2007/051_100/95_07.doc

Information already publicly available and easily accessible to the requestor in another format

EIR Regulation 6 (1)‘Where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available, unless –

(a) it is reasonable for it to make the information available in another form or format; or(b) the information is already publicly available and easily accessible to the applicant in another form or format’.

We have determined that information on our Public Register qualifies as publicly available. We do not charge for inspection of public registers. If information is withheld from a public register in accordance with exemptions in the legislation creating them, a request for information will then have to be considered under the EIR. The exemptions may be different, the public interest test will apply and the emissions override may be relevant, so information withheld from the public register may have to be released. In this situation we apply EIR charges in the usual way.

Information approved for access

This class of information is where policy and legal checks have already been made to determine that a specified category of information is safe to release to the public. No further confidentiality checks are needed before disclosure. For a list of classes of information that are Approved for Access, see the Publication Scheme.


http://www.environment-agency.gov.uk/aboutus/work/35690.aspx

The exemptions

Exemptions This chapter describes the following exemptions:

Topic See pageIt's not information 5

We don’t hold the information 6

It’s manifestly unreasonable 7

It’s too general 8

Drafts and private thinking 8

Commercial confidentiality 11

Volunteered confidential information 13

International relations, public safety and national security 14

Legal proceedings and investigations 16

If there’s a threat to the environment 16

Intellectual property rights 17

The information is personal 17

Other rules of law 19

The requester has not paid 19

It's not information

Description There is not an exemption, as such, written into FOIA or EIR, but when the request is to supply something which is not ‘information’, the rules do not apply.

Example: We are asked for our opinion or to give advice. It’s only a request for information if that opinion or advice already exists in writing. It is not in this case necessary to use the standard refusal or partial refusal letter. It is adequate to use the following paragraph, but in addition, you must add the appeals paragraph from the standard refusal letter.

Standard paragraph

‘You have made a request to us which is not for information and therefore the Environmental Information Regulations and the Freedom Of Information Act do not apply. We are able to advise you as follows:…………………’



We don’t hold the information

Description EIR Regulation 3(2) states that information is held if it is in our possession and has been produced or received by us, or it is held by another person on our behalf at the time the request is received.

We still hold it if it is in our possession even if it is owned by someone else - and even if they say it is on loan. We also hold it for EIR if someone else holds on our behalf.

What to do The table below describes what our actions might be:

If… then…a public authority is holding information because it is acting in a judicial or legislative capacity

the EIR do not apply. This will rarely apply to the Environment Agency.

we don’t hold the information the duty to answer a request for information does not arise. But we must try to point them in the right direction (see 389_04 Requests for Information regarding external transfers).

If we transfer, we are obliged to write a refusal letter.

we do not hold and we cannot transfer

consider issuing a refusal letter if appropriate and always formally respond.

Relevant exemption Regulation 12(4)

A public authority may refuse to disclose information to the extent that -(a) it does not hold that information when an applicant's request is received;

Standard paragraphs

If there is not an external transfer:

‘The duty to make information available to you under EIR Regulation 5(1) does not arise because in accordance with EIR Regulation 3(2) we do not hold the information you have requested’.

If there is an external transfer also add:

‘We have complied with our duty under EIR Regulation 10 to transfer your request by [sending it to the public authority that we believe does hold it, namely: contact name, address, phone, email / by providing you with contact information for the public authority that we believe does hold it, namely: contact name, address, phone, email]’

‘EIR Regulation 12(4)(a) also applies – we do not hold the information that you have requested’.

In both cases add the standard appeal paragraph from the <<standard refusal letter>>.






It’s manifestly unreasonable

What to do We need to provide advice and assistance when the information requested is such that it is unreasonable to provide it. Try to help the customer re-word the request into one that meets their needs, but that we can satisfy. Even if we end up having to refuse a request, we want to be seen as helpful and open! See 388_04 Guidance on giving advice and assistance.

We’ve included details on the following:

Unreasonable in terms of time ;

Unreasonable in terms of persistent/ harassing requests .

Unreasonable in terms of time

The relevant exemption EIR Regulation 12(4)‘A public authority may refuse to disclose information to the extent that -(b) the request for information is manifestly unreasonable’.

Standard paragraph‘The exception under EIR Regulation 12(4)(b) applies as the request is manifestly unreasonable in that it would take [etc. details of timing to collate and redact the information]‘.

We interpret unreasonable in terms of the time it would take to comply with the request – which means that we will be diverted from carrying out our other statutory duties.

up to £450 (roughly two days work) is always reasonable;

£450 to £1,000 (roughly four days work) is normally unreasonable, but an Area or Region uses its discretion depending on the circumstances;

over £1,000 is almost always unreasonable - make national checks before agreeing to such a request.



Unreasonable in terms of persistent/ harassing requests

From time to time, we receive requests which create a disproportionate burden on our resources, either because they are frivolous or because the requester is so persistent that they have the effect of harassing us.Examples: Repeated requests for the same information in a short space of time or information containing offensive language.

Generally, it is the request, and not the enquirer, which must be ‘manifestly unreasonable’. Where you suspect that a request is manifestly unreasonable, ask yourself the following two questions:

1. Would you find the request manifestly unreasonable if it came from a member of the public that you have not dealt with before?

2. Would a reasonable person find the request manifestly unreasonable?

If you decide the request is manifestly unreasonable, it may be appropriate to refuse to comply with the request.

The refusal letter must indicate that we are refusing to enter into further correspondence on the matter and are relying on the exemption under regulation 12(4)(b).

Deal with each request on a case by case basis. In particular, in the case of persistent requests for the same information, after a reasonable interval has elapsed between requests, the request may no longer be manifestly unreasonable.

When assessing what is a reasonable interval, consider whether the situation has changed between the previous and the current request. Has new information come to light in the meantime which can be released.

It’s too general

The relevant exemption EIR Regulation 12(4)

‘A public authority may refuse to disclose information to the extent that -(c) the request for information is formulated in too general a manner and the public authority has complied with regulation 9’.

If a request is too general in nature, regulation 9 is the duty on a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants – see ‘Guidance on giving advice and assistance’. If we have given advice and assistance and are still not able to identify the information sought, we can consider this exemption. Public interest factors of particular relevance will be the amount of time it would take to further seek to identify information and diversion of Environment Agency resources to do this.

Standard paragraph

‘EIR Regulation 12(4)(c) applies - we may refuse to disclose information to the extent that the request for information is formulated in too general a manner and we have complied with our duties under EIR Regulation 9 to provide you with advice and assistance. We refer to the advice and assistance we have given in our [phone calls dated../ emails of…. etc]. We have remained unable to identify the information that you have requested so that we could collate and consider it for release.’



Drafts and private thinking

Three potential exemptions

There are three potential exemptions which may be relevant here and there will be times when the exemptions overlap and it is appropriate to consider and apply more than one. These are described below:

drafts ;

internal communications ;

confidential proceedings of a public authority .

Drafts


A public authority may refuse to disclose information to the extent that –(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data.

What to do The table below lists possible requests related to drafts.

Item Possible action1 You might withhold a draft if it’s reasonable for the customer to wait

for publication. This might depend on the issue and the time until expected publication or when the incompleteness could make it misleading – although often an explanation might clarify this.

2 A request might be for drafts even after the final version of a document has been released.

Consider public interest factors – whether it was appropriate to protect ‘thinking in private’ and whether it would cause harm to a decision making process to release provisional stages and early thought processes.

3 A draft could be a completed stage in a process and might be complete in itself. A mere label of ‘draft’ on a document must not be accepted at face value.

If there is a set of facts and figures which are complete within a draft document where perhaps the conclusions have not been finalised, then those facts and figures may well not themselves be ‘draft’. You must consider releasing them.

4 If relevant, specify an estimated time for completion of the draft. Although we are not obliged to send out when complete, we may choose to do so in the interest of customer service.


Standard paragraph

‘EIR Regulation 12(4)(d) applies because the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data. To release information at this stage would ……………. As relevant: We anticipate that the final information will be completed [date]. […public authority] are also preparing the information.’

Also note: Regulation 14(4) requires that if the exemption in regulation 12(4)(d) is specified in the refusal, the authority shall also specify, if known to the public authority, the name of any other public authority preparing the information and the estimated time in which the information will be finished or completed.

Internal communications


‘A public authority may refuse to disclose information to the extent that – (e) the request involves the disclosure of internal communications.’

Internal communications include internal emails, attendance notes, minutes of meetings, records of phone conversations, recommendations and briefing notes etc.

What to do Although the exemption applies on the face of it to any internal communication, regardless of harm, we do in fact need to show that there is confidentiality in the documents and that release would cause some harm. You must explain this in the refusal.

We might withhold internal communications that are leading up to, for example, a new policy, decision or document, to allow us to ‘think in private’. While we would normally disclose the final policy, decision etc. and the information related to our making the decision, it might not be necessary to release details of all discussions.Example: Part of ‘brainstorming’ is about considering inappropriate options.

EIR Regulation 12(8) states that for the purposes of paragraph (4)(e), internal communications includes communications between government departments.

‘Internal communications’ can include communications between the Environment Agency and other organisations. It is likely to include communication with Defra (or another public authority with which the Environment Agency has a close relationship, such as the HSE), particularly where we are acting as joint competent authority.Examples: With HSE about COMAH sites or where we are working with a government department on a particular issue, such as developing new legislation or guidance.

It will include communications between the Environment Agency and contractors or agents whom we have employed to carry out works for us. However, it may not include communications between the Environment Agency and all other public bodies.

Minutes of meetings that companies or user groups attend by way of consultation are unlikely to be internal for this exemption.


Standard paragraph

‘EIR Regulation 12(4)(e) applies as the request involves the disclosure of internal communications and it would be harmful to release these communications because……..

Confidential proceedings of a public authority

The relevant exemption Regulation 12(5)

‘Regulation 12 (5)……disclosure would adversely affect -(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.’

The meaning of the term proceedings is not entirely clear, but will include a range of formal investigative, regulatory and other activities carried out according to a statutory scheme, for example, local authority council meetings. It does not cover the day to day running of a public authority.

Note that with this exemption there is a requirement that disclosure will have an adverse effect. The proceedings might be of another public authority, not the Environment Agency. This might include board and committee meetings where there are express laws that allow the proceedings or part of them to be confidential.

Note also that this cannot apply to information relating to emissions (see Policy Advice Note: The Overriding of Certain Confidentialities when the Request relates to information on emissions). It is not likely to apply frequently.

Standard paragraph

‘EIR Regulation 12(5)(d) applies because disclosure would adversely affect the confidentiality of the proceedings of [the…name of public authority] where such confidentiality is provided by law [namely the ……statute/common law…]’.

Commercial confidentiality

Relevant exemption EIR regulation 12(5)

‘…….. disclosure would adversely affect - (e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;’

Much information is related to commercial matters but we are looking for real and significant confidentiality. It must adversely affect them economically and not just be embarrassing to the company.

Examples: Detailed information about how a business works, customer lists or trade secrets.




What to do It is our decision, but we would usually ask the opinion (with justification and explanation) of the body affected before deciding to disclose.

We can’t apply commercial confidentiality to information about emissions or related information such as investigating a complaint about an excessive emission (See Policy Advice Note: The Overriding of Certain Confidentialities when the Request relates to information on emissions).

We can only apply the exemption if the law would provide the company with legal redress outside the FoI rules. This may mean that the common law of confidence would apply or there may be a breach of contract.

Sometimes information has been removed from the public register on the grounds that it is commercially or industrially confidential, for example, under the Environmental Permitting (England and Wales) Regulations 2007. If so, consider the reasons recorded for that decision when you assess whether information is treated as commercially confidential under FOIA or EIR.

Note: The tests for confidentiality are not exactly the same and you also have to consider the public interest test and emissions override.

Standard paragraph

‘EIR Regulation 12(5)(e)) applies because disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. The adverse effect is………., the economic interest that will be harmed is……………….. and the confidentiality is provided by ………………………[explanation of law as to why it is confidential]’.




Volunteered confidential information


‘…….. Disclosure would adversely affect - (f) the interests of the person who provided the information where that person -(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and(iii) has not consented to its disclosure.’

This ground applies:

if the person who supplied the information could not have been forced to do so;Consider whether we or another public authority could have required the information. You may need to consult other obvious public authorities involved. Or consider our legislation, such as s.108 Environment Act 1995, s.71 Environmental Protection Act 1990, s.202 Water Resources Act 1991 etc.

and if the information was/is of a confidential nature and was expected to be treated so;

and it is not data about emissions;See Policy Advice Note: The Overriding of Certain Confidentialities when the Request relates to information on emissions).

and disclosure would adversely affect the interests of the person who volunteered the information (or their principal if they are acting as agent as in the situation where a consultant submits a report on behalf of a company).

What to do We can always ask the person who volunteered the information to consent to its disclosure.

Note, however, that in the situation where the volunteer is an informer or is making a complaint about another body, telling the Environment Agency about a pollution incident for example, then it is our policy to protect the name of that informer and not to discourage other informers. So we would not ask the informer whether they consented to the disclosure of their name.

If the informer were an individual, sole trader or non incorporated partnership, then we would consider the exemption for personal data and otherwise we would consider this ‘volunteered’ exemption.

We take the name of a complainer about an environmental incident to be environmental information so the EIR applies.




Standard paragraph

‘EIR Regulation 12(5)(f) applies because disclosure would adversely affect the interests of the person who provided the information where that person was not under, and could not have been put under, any legal obligation to supply it to the Environment Agency or any other public authority; they did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and they have not consented to its disclosure. The adverse effect would be caused by…………….’

Names of those who make information requests – these names are not environmental information so the FOIA applies.

If the informer were an individual, sole trader or non incorporated partnership, then we would consider the exemption for personal data under s.40 FOIA and otherwise we would consider this confidential information exemption under s.41 FOIA.

There is a standard letter to use to refuse this information. We do not ask the requester to consent to release <link to standard letter refusing to release name of requester of RFI>.

International relations, public safety and national security


‘Disclosure would adversely affect -international relations, defence, national security or public safety’.

This exemption will often apply when considering COMAH sites or nuclear sites. See Guidance on Sensitive Requests for Information and DO7_194 COMAH – considering national security when managing public registers and responding to requests for information.



What to do Always seek advice from ILU as soon as possible, if you believe requested information may fall into this ground.

The Environment Agency must refer the request to the Access to Information Central Clearing House at the Ministry of Justice and through them to the Security Services, usually at a weekly meeting of the National Security Liaison Group.

Sometimes it is necessary to consult the Counter Terrorist Security Officers of the police or the Office for Civil Nuclear Security of the Centre for the Protection of National Infrastructure.

It is possible for the Minister to issue a certificate under Regulation 15 that disclosure of information would adversely affect national security and then that certificate is conclusive of the matter within it. In practice this is rarely likely to happen.

Neither confirm nor denyEIR Regulation 12 (6) states that for the purposes of paragraph (1) (refusal), a public authority may respond to a request by neither confirming nor denying whether such information exists and is held by the public authority, whether or not it holds such information, if that confirmation or denial would involve the disclosure of information which would adversely affect any of the interests referred to in paragraph (5)(a) and would not be in the public interest under paragraph (1)(b). In other words, if it would damage international relations etc. even to say whether you held certain information and the public interest balance is in favour of withholding for this reason, then you can say that you neither confirm nor deny whether you hold this information.

Standard paragraph

‘EIR Regulation 12(5)(a) applies because disclosure would adversely affect international relations, defence, national security or public safety, specifically………………..;’

Or if we need to neither confirm nor deny:

‘EIR Regulation 12(6) applies and we will neither confirm nor deny that the information that you have requested exists or that we hold it, because that confirmation or denial itself would involve a disclosure which would adversely affect matters listed under EIR Regulation 12(5)(a) - international relations, defence, national security or public safety, specifically………………..’

Note that even when we neither confirm nor deny we have to carry out the public interest test as below.


Legal proceedings and investigations


‘Disclosure would adversely affect -the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;’

This exemption can be relevant to criminal or civil proceedings, tribunals and some enquiries. There must be a realistic prospect that there will be a trial or inquiry. And release of information must be more likely than not to adversely affect the relevant proceedings or investigations.

As this exemption requires consideration of the interface between Court Rules of Civil or Criminal Procedure and freedom of information legislation, seek advice from the ILU who will work closely with the Prosecutors or Advisory Lawyers as necessary.

This exemption can correctly be used when considering disclosure of information subject to legal professional privilege (although that may also fall within 12(4)(e) internal communications).

Standard paragraph

‘EIR Regulation 12(5)(b) applies because disclosure would adversely affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature, specifically with this information……………………..’.

If there’s a threat to the environment


‘ …….. disclosure would adversely affect -(g) the protection of the environment to which the information relates.’

Obvious examples are nesting sites or rare habitats.

You can’t apply this ground to emissions data (See Policy Advice Note: The Overriding of Certain Confidentialities when the Request relates to information on emissions).

Standard paragraph

‘EIR Regulation 12(5)(g) applies because disclosure would adversely affect the protection of the environment to which the information relates.’





Intellectual property rights


‘EIR Regulation 12(5) …….. disclosure would adversely affect –(c) intellectual property rights;’

This exemption can protect both Environment Agency and third party intellectual property rights, such as patents, trademarks and designs, copyright and unregistered design rights.

What to do You can only apply the exemption where there is a real risk that the disclosure (or further dissemination after disclosure) would seriously damage the rights and interests of the holder.

There must be a risk that the commercial or other interests of the rights holder would be jeopardised by the release of the information, not simply a textbook breach of IP rights.

It is likely that there is a potential loss of revenue – the owner of the IP would usually sell the books, maps, publications.

In some cases it may be possible to allow access to read the information but not to copy and take away.

In other cases it may be adequate to release without a licence but instead with a Copyright Statement and Disclaimer.

Standard paragraph

‘EIR Regulation 12(5)(c) applies because disclosure would adversely affect intellectual property rights in that [ how, who, etc.]’.

The information is personal

Two types There are two instances when someone may ask for personal information:

subject access requests ;

someone else’s personal information .

Subject access requests

EIR regulation 5(3)

To the extent that the information requested includes personal data of which the applicant is the data subject,paragraph (1)(duty to make information held available on request) shall not apply to those personal data.

What to do Requests for the requester’s own personal data are subject access requests and must be dealt with under data protection legislation and not under EIR refer to the Data Protection team without delay.


Someone else’s personal information


‘To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with Regulation 13.’

EIR Regulation 13 sets out at length the necessary consideration of the requirements of the Data Protection Act 1998. (DPA)

Personal information or data - that tells you something about an individual -is defined in Definition of Personal Data.

What to do If you think that personal data is included within the information for disclosure, considering the DPA can be complex and you can seek advice from the Data Protection team.

The Data Protection team 'Quick Guides' can be accessed from the Easinet Data Protection pages at http://intranet.ea.gov/policies/7769.aspx

Standard paragraph

The information [insert description of information if a subset of the request] you have requested is exempt from disclosure under Regulation 12(3) and Regulation 13(1) of the Environmental Information Regulations 2004. The latter states:

‘To the extent that the information requested includes personal data of which the applicant is not the data subject and as respects which either the first or second condition below is satisfied, a public authority shall not disclose the personal data’.

The ‘first condition’ referred to above is further explained is Regulation 13(2)(a):

‘…in a case where the information falls within any of paragraphs (a) to (d) of the definition of ‘data’ in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under these Regulations would contravene –any of the data protection principles…’.

It is the view of the Environment Agency that the information requested is personal information and its disclosure would contravene the first data protection principle of the Data Protection Act 1998.

** Further explain if requester queries whether information about a sole trader is personal:

I understand that you believe that the information you have requested is not personal information as it concerns a business. However, if a business is non-corporate, information about the business and its owner(s) is personal if it relates to an individual and if it affects the privacy of that person, whether in a personal or business capacity. The information you have requested falls within this definition and as such is personal information and exempt from the EIR.


http://intranet.ea.gov/policies/7769.aspx

http://intranet.ea.gov/ams_document_library/2008/951_1000/985_08.doc

Other rules of law

What to do There are some other general rules of law that may have an effect. These include statutory rules, common law confidentiality, defamation and contract. They only apply in a small number of cases.

Contact the Information Law Unit in all such cases.

The requester has not paid

Description It is not a refusal if the requester has not paid the appropriate charge. A letter will have been sent stating that if the charge is not paid by a certain date the request will be considered to be withdrawn.

The Public Interest Test

Overview

Contents This chapter includes the following topics:

Topic See pageFactors in favour of disclosure 20

Factors in favour of withholding 21

Description: public interest

The public interest is not the same as things which merely interest the public. The public interest may have many different elements and you may have to consider, for example, the interests of individuals, companies and special interest groups, the economy or the country as a whole. These particular interests may not coincide.

Refusal to provide the information is only permitted if the public interest in refusing the information outweighs the public interest in disclosing it. So, even where the information requested is clearly covered by a specific exemption, when all the circumstances are considered, you may decide that the public interest factors mean that the information can be disclosed.

Public interest factors can change over time, so even if information is not released now, if factors change, it could be released in the future.

What to do The table below summarises how to consider public interest.

Step Action1 In considering whether an exemption applies, in almost all cases,

balance the public interest factors in favour of applying the exemption against the public interest factors in favour of disclosure.

2 This does not mean just listing and counting the numbers of factors


for and against.

Try to consider which factors are important or weighty and really assess the factors to reach a decision.

3 When considering the public interest factors (some of which are listed below), select those which are really relevant to the information and circumstances of the particular request.

Consider how they particularly fit and are weighed in that request.

4 If it is decided that information will be withheld, include the factors considered and how they apply in the refusal letter.

Try not simply to give long lists of relevant factors. Combine the factors into paragraphs and explain how they are relevant and how important each is in the particular case.

Factors in favour of disclosure

Always consider

The table below lists the factors that you must always consider.

Item Always consider1 General presumption of openness

We would only withhold information if we are sure that disclosure would cause substantial harm. Here the harm is……….

2 General need to promote accountability and transparencyThere is an inherent general public interest in disclosure so public authorities are transparent and accountable. It is important that a public authority is accountable in spending public money and that the public are able to assess how they are taking decisions that affect them and that decision making and spending public money is done in an open manner.

To this end, there is a public interest in releasing information about a decision. But there will be some parts of the information whose release does not add to public understanding of potential impact on the environment and public health and safety and do not aid understanding of factors taken into consideration in taking the decision.

Are there particular concerns regarding environmental and public health and safety impacts of the proposed xxx?

Public interest in ensuring that the Environment Agency ensures that voluntary economic based schemes become compliant by using appropriate means of enforcement in a transparent way, such as producer compliance and WEEE.


Consider as relevant

The table below lists the factors that you should always consider as relevant.

Item Consider as relevant1 Whether the information is already public

There is no point in ‘closing the stable door after the horse has bolted. However there may be a situation where whilst there was a release of information previously, circumstances have changed – perhaps there is a heightened national security risk – although the information was released it was not widely distributed. If information is not already public then that is a factor neither for nor against release.

2 Contribution to public debate of issues, public participation in environmental decision making or other democratic aspects Consider and discuss whether there is particular public concern locally or nationally or even internationally about matters to which the information is relevant. Is there a particular licensing application, or a particular incident that has occurred? Is this a matter about which there is clearly a high level of public interest, for example, Safety at COMAH sites or nuclear sites?

3 Contribution to effective running of the public sector. For example, disclosure of shortcomings may be beneficial in increasing pressure for improvements.

Is there a relevant point about whether the Environment Agency is taking appropriate decisions in relation to……..?

4 Contribution to sustainable development or public health and safetyHow would release of this information enable the public either themselves to contribute or to put pressure on public authorities to take steps to improve sustainable development etc.? Are the best environmental options being selected for…………….?

Factors in favour of withholding

Strength’ (and number) of grounds in the legislation

Say what each ground is and if any are of particular importance in this case:

Regulation Points to consider12(5)(a) The prevention of harm to national security and public safety is of a very high

level of importance and when considering this exception we have consulted with the Security Services via the Ministry of Justice / the Office for Civil Nuclear Security…….. In relation to the limited information that has been redacted for reasons of national security in this situation, this factor alone is sufficient to exceed those in favour of disclosing the information (it may not always be – consider the circumstances).

Note: Consultation with the security services by ILU will always take place, so up to date security factors can be considered.


Regulation Points to consider12(5)(b) …would adversely affect the course of justice, ability of a person to receive a

fair trial, ability of a public authority to conduct an inquiry of a criminal or disciplinary nature... - if release would be likely to cause a criminal investigation and prosecution to fail for abuse of process, inability for there to be a fair trial etc. there will be a very high level of public interest in the information not being released.

12(5)(c) A less strong ground against release as it is usually possible to protect IPR by licensing and restricting use or by using form and format to ensure that only inspection of the information is given.

12(5)(d) A less common exception – if circumstances require its use then they may well also give weighty public interest factors in favour of withholding information.

12(5)(e) In relation to commercially confidential information, the effect of disclosing such information will be that ……………….competitors would receive an unfair commercial advantage.

………………….operates in a highly specialised field and competitive market – is this a field where only a very few companies can do the work?

The small redactions ……………refer to the ……………that give the company its competitive edge. There is a public interest in ensuring that companies operate without the release of information that harms their competitiveness.

There is a significant public interest in protecting the commercial interests of the private sector which plays an important role in the general health of the country’s economy. Is this particularly important in a small and specialised field – or is there currently a recession – or a threat to this industry from companies abroad etc?

Where there are contractual requirements of confidentiality, there is a public interest in allowing that such clauses be respected. If the companies are operating in a sector that allows the UK to meet EU environmental obligations then there is a strong public interest – for example the open markets created by Producer Responsibility and by WEEE.

12(5)(f) The ‘volunteered’ exception – this may be a weighty factor if the situation is one where we do not wish to discourage volunteers – for example from reporting environmental damage to us.

12(5)(g) Damage to the environment – clearly weighty if this is relevant.

12(4)(a) Not held – not really public interest considerations here.

If we do not hold it, we cannot disclose.

Note: See above, in Guidance on exceptions, for what we need to prove to show that we do not hold the information.

12(4)(b) Manifestly unreasonable – insofar as it involves diversion of Environment Agency resources…..

12(4)(c) Too general and we have complied with provision of advice and assistance – similar to (b) in that it involves diversion of resources.

12(4)(d) In relation to the supply of a draft document as discussed in …………….the effect of disclosing this information would be to provide misleading information.


Physical /mental health of an individual

It would be rare to release information that put someone at any significant risk, for example, of physical attack. The release of information which would adversely affect national security may, in addition, put employees and others at risk of physical attack.

Step Action1 Consider the circumstances.

Is there any history of direct action or protest?

2 While you might consider this relevant if it is to do with nuclear inspectors or individuals involved in a shipment of waste, where there have been protests, where the police or security services are advising there is a threat, it may not always exist in reality.

Example: For addresses of pig and poultry farms previously we have considered there not to be a threat due to the lack of any history or threat of direct action.

Prejudicing the effective running of the Environment Agency or another pubic body

This includes certain details of a pending prosecution or details of how surveillance investigations are carried out that would let wrong doers get away. Generally in investigating environmental crime, consider:

the effect on chances of a successful prosecution;

bringing future charges/making arrests/fair trial;

being fair, where ultimately it does not proceed, to the accused;

the effect on gathering confidential intelligence;

the effect on participation of victims, witnesses, informants, suspects or offenders - protect or endanger them;

the effect on other ongoing or future proceedings, if release would prevent or facilitate commission of an offence.

All of these could prejudice the effective running of the Environment Agency.

If we were to spend days of effort to search for information that we probably do not hold, this would detract from our primary task of protecting the environment – perhaps relevant if considering manifestly unreasonable exception.

This factor is not relevant if release would only ‘embarrass’ us or highlight our shortcomings.

Consider whether there is a need to consult with another public body if they also hold the information/it concerns them and you consider release could adversely affect how they carry out their public duties.

Consider whether this factor is relevant when the Environment Agency needs some space to ‘think in private’ and think the unthinkable in relation to decisions. Would it prejudice the Environment Agency for those thoughts to be released? Does it depend on timing – if the decision they are leading up to has not yet been made? If it has been made and detailed reasons for it have been given?


Legal professional privilege between solicitors and us

This considers the usual exception of internal communications. This is a very strong public interest factor if it exists. Legal professional privilege (LPP) is an important principle that should be respected in most cases as it is a long standing and justifiable concept to preserve confidentiality in obtaining legal advice. Public authorities need to be able to ask for free and frank legal advice – to ensure the actions they take are legal. Effectiveness of operation of a public authority would be adversely affected if they cannot.

Do consider whether on a rare occasion, legal professional privilege can be overridden. For example:

if there is a legal issue that is a central plank of the requester’s case and public debate around the issue in question is considerable;

if the legal advice on this issue is brief and without a series of arguments and counter arguments which could unfairly prejudice a future case;

if there are no other confidential elements in the legal advice.

If this is an administrative situation – legal advice privilege – given when not anticipating litigation (although there may even in an administrative situation be some chance of a judicial review if for example a consent is awarded), then LPP less weighty.

It is most weighty when the legal advice concerns some element of human rights, loss of liberty, private or family life.

Consider:

accountability and transparency of the Environment Agency in regulation – if that is what the advice is about;

whether the legal advice was in part based on facts which may not have been as well established as became clear on further consideration – if there is any shortcoming in the legal advice it is in the public interest to release it;

if the legal advice is old again its sensitivity may have been reduced – but that will depend on the circumstances.

Unlikely that any weight would be given to the argument that a risk of disclosure of legal advice would discourage public servants from obtaining such advice.

Note: Never disclose legal advice without consulting the ILU. Note that LPP which is litigation privilege is broader than legal advice privilege – it arises after litigation or other adversarial proceedings are commenced or contemplated. It protects all documents produced for sole or dominant purpose of litigation including communications between:

a legal adviser and their client;

a legal adviser and their non - professional agent;

or a legal adviser and a third party.


Will it compromise other laws or legal principles?

Although Regulation 5(6) overrides other laws and legal principles, they will be relevant to the public interest.

If release would breach for example a law designed to protect against terrorism that would be very weighty in the balance.

Examples include: breach of confidence, defamation, contempt of court,

breach of Official Secrets Act, Anti Terrorism Crime and Security Act s.79; Nuclear Industries Security Regulations 2003 and 2006 – Regs 22 and 25; WEEE Regs 65(3)

Will it be misleading or cause alarm?

Would the information be out of date? Can you advise and assist to guide the requester to more recent information?

Situations where the public would be misled should be very rare and usually we could provide explanatory context to reduce any such negative impacts. However this might be relevant for a draft. There is a public interest in ensuring that any documentation we disclose is factually correct and not likely to be misleading to the public. This factor is relevant to the release of the draft document referred to in ………

Noting that the final document is due to be issued by the end of …………(soon)………… and can then be released to the requester increases the strength of this argument.

Can we separate confidential information

Can we separate confidential information from discloseable information that meets customer needs? Have we been able to separate out and release some information? Have we ensured that only the minimum necessary is withheld?

The more information that is available already or can be given out now, the more likely it is that some information might be withheld. For example if there has been a serious incident – such as the Buncefield fire – regular bulletins were being placed on regulator website so that the public were informed.

This might make it more possible that the balance is in favour of withholding the information that would for example have an adverse effect on public safety or on a criminal investigation.

Can information be made anonymous? For example disassociated lists, such as a list of company names, and another shuffled list of what the requester wants to know about that type of company, so that the confidentiality of each company is not breached but the requester is given information generally.

Can summary information, by area or region for example, be given if specific information about say land contamination sites cannot be released?


Table of exemptions

FoI EIR

We do not hold the information (Section 1 and Reg. 12 (4)(a))

Accessible by other means (Section 21)

Above cost limit (Section 12) Manifestly unreasonable (Reg. 12 (4)(b))

Vexatious (Section 14)

Repeated (Section 14)

Reasonably requires further information (Section 1) Request is too general (Reg. 12 (4)(c))

Future Publication (Section 22) Drafts (Reg. 12 (4)(d))

Internal Communications (Reg. 12 (4)(e))

Prejudicial to effective conduct of public affairs (Section 36)

Proceedings of a Public Authority (Reg.12 (5)(d))

Intellectual Property (Reg. 12 (5)(c))

Commercial Interests (Section 43) Commercial Confidentiality (Reg. 12 (5)(e))

Information provided in Confidence (Section 41) Volunteered information (Reg. 12 (5)(f))

Information whose disclosure is prohibited (Section 44)

Personal Data (Section 40 or Reg 13 (2))

Subject Access Request (Section 40 or Reg 13(1))

Adverse affect/prejudice

International relations, defence, national security

Course of justice, fair trail and inquiries, criminal or disciplinary

Legal professional privilege (Section 42)

Damage to environment (Reg. (5)(g))

Health and Safety (Section 38) Public Safety (Reg. (5)(b))


Related documents

Links 400_04 Procedure for Responding to Requests for Information

399_04 Work Instruction: Refusing a Request for Information

399_04_SD01 Standard refusal letter

Refusal to release RFI applicant details to third party


http://ams.ea.gov/ams_root/icontent/DocDir43/387_04_SD01.doc

http://ams.ea.gov/ams_root/icontent/DocDir43/399_04_SD01.doc

http://146.213.80.51/icontent/DocDir43/399_04.doc

http://146.213.80.51/icontent/DocDir43/400_04.doc

387_04 requests for information – exemptions and the ...€¦ · web viewthe public interest...

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