Whilst the Freedom of Information Act creates a right to request specific information held by public bodies, it also provides for a number of exemptions from disclosure. These have the effect of permitting public authorities to withhold some or all of the information requested where the exemptions apply.
In addition, the Freedom of Information Act allows for public authorities to decline to comply with certain requests for information on the grounds of cost where to do so would be particularly expensive. For universities the threshold above which we are not obliged to comply with a request is £450. This also equates to 18 hours work, regardless of who undertakes this work. For more information see under Dealing with enquiries (e) Fees. Section 14 also allows refusal where a request is repeated or vexatious.
Many (but not all) of the exemptions will only apply where it can also be well-argued that it is in the public interest to withhold the information. Therefore, where an exemption is subject to the public interest test, consideration must be made of the balance between the public interest in releasing the information as opposed to withholding it.
There is no definition in the Act of what is meant by the public interest.
Guidance from the Information Commissioner on the public interest test can be seen here.
A few exemptions (known as ‘absolute’ exemptions) do not require a consideration of the public interest.
The absolute exemptions that are likely to be applicable to universities are as follows:
(i) Information accessible to the applicant by other means (Section 21 of the Act)
For example:
- the information requested may be available via the website or Publication Scheme (the applicant can find the information him/herself)
- the information may be reasonably accessible elsewhere even where a fee is involved. For example, the information may be in the public domain via the OfS or by requesting it from HESA.
Information Commissioner guidance on this exemption: https://ico.org.uk/media/for-organisations/documents/1203/information-reasonably-accessible-to-the-applicant-by-other-means-sec21.pdf
(ii) Personal information (Section 40)
If the information requested relates to the applicant there is an absolute exemption from disclosure under s.40(1). However, this information is likely to be disclosable under data protection legislation. Therefore the applicant should make a data subject access request where the time for response is one calendar month. More details can be found on the data protection pages.
If the information requested relates to a third party person i.e. not the applicant, then also exempt from disclosure, under s.40(2), is any information which to disclose would be contrary to the principles of the Data Protection Act. In cases such as this there may be many factors to take in to account. For example information relating to how an officer has acted in an official capacity for the public authority may be disclosable but information which might unfairly identify a student would likely not be.
Information Commissioner guidelines on this exemption can be found at: https://ico.org.uk/media/for-organisations/documents/1213/personal-information-section-40-regulation-13.pdf
(iii) Information provided to QMUL in confidence by an external person or agency (Section 41)
This exemption applies where disclosure might lead to an actionable breach of confidence.
It does not apply to information generated by QMUL even that which might, according to past custom and practice, be considered to be or labelled as confidential. However, other exemptions might apply, subject to the public interest test.
Information Commissioner guidelines on this exemption can be found at: https://ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf
The other exemptions, known as qualified exemptions, likely to apply to universities include:
(i) Information intended for future publication (Section 22) and research information (Section 22A)
Information is exempt from disclosure if it is held with a view to future publication at the time of the request and it is reasonable in all the circumstances that disclosure should not take place until the publication date even where the date is not yet fixed.
This might exempt from immediate disclosure information to be contained in:
Note that background information prepared for discussion purposes but not intended for future publication is not exempt from disclosure.
Information may also be exempt from disclosure if it was obtained in the course of, or derived from, a programme of research and the following criteria are met:
Information Commissioner guidelines on this exemption can be found at: https://ico.org.uk/media/for-organisations/documents/1172/information-intended-for-future-publication-and-research-information-sections-22-and-22a-foi.pdf
(ii) Law enforcement (Section 31)
Information is exempt from disclosure if it would be prejudicial to (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders and in various other circumstances such as securing health and safety at work, ascertain whether any person has failed to comply with the law and so on.
(iv) Prejudice to effective conduct of public affairs (Section 36)
Under this exemption information may not be disclosed if, in the opinion of a qualified person, it would, inter alia, be prejudicial to free and frank debate, provision of advice etc. The qualified person in respect of individual university institutions is the Vice-Chancellor or equivalent i.e. for Queen Mary it is the Principal.
(v) Communications with [the Monarch], the royal family and the royal household (Section 37)
The duty to confirm or deny also does not apply e.g. regarding honours.
(vi) Health and safety (Section 38)
Information is exempt from disclosure if its disclosure would endanger the mental or physical health or safety of any individual. In this case there is no obligation to advise whether the information is held or not.
In all other cases health and safety information relating to QMUL is likely to be disclosable.
(vii) Legal professional privilege (Section 42)
The Information Commissioner has issued guidance on this exemption.
(viii) Commercial interests (Section 43)
Information is exempt from disclosure if it is a trade secret or its release would be likely to prejudice the commercial interests of any organisation or person, including QMUL.
Where the exemption claimed is a trade secret it does not remove the obligation to confirm or deny whether the information is held. However, there is no obligation to confirm or deny where the information might be prejudicial to commercial interests.
Contracts with third parties should be considered under this heading. It should not be automatically assumed that all contracts are exempt from disclosure. Disclosure may not be prejudicial to commercial interests at all. Only certain sections may be exempt from disclosure. If a request for contract information is received, the third party should be contacted for comment (while keeping sight of the 20 day response period). It will remain a decision for QMUL (rather than the third party) as to whether disclosure is required or will be made under the Act. Future contracts should include clauses advising the third party of obligations under the Act.
Note that the public interest test must be applied before exempting information from disclosure. Information is not exempt from disclosure on the grounds that it is damaging to a public authority.
Guidelines from the Information Commissioner are available at: https://ico.org.uk/for-organisations/foi-eir-and-access-to-information/freedom-of-information-and-environmental-information-regulations/section-43-commercial-interests/
Possibly some of these could apply to academic research.
(i) Information about or supplied by security bodies (Section 23)
(ii) National security (Section 24)
(iii) Defence (Section 26)
(iv) International relations (Section 27)
(v) Relations within the United Kingdom (Section 28)
(vi) The economy (Section 29)
(vii) Investigations and proceedings (Section 30)
(viii) Court records (Section 32)
(ix) Audit functions (Section 33)This exemption is unlikely to apply to QMUL as it only relates to public authorities who have an audit function (widely interpreted) in relation to other public authorities. The exemption would apply to information that if released would be prejudicial to the effective performance of an audit. The exemption could apply to HEFCE or the QAA in their audits of universities.
(x) Parliamentary privilege (Section 34)
(xi) Formulation of government policy (Section 35)
(xii) Environmental information (Section 39)This exemption is a technicality given that disclosure according to a separate piece of legislation is required under the Environmental Information Regulations 2004.