5 - The exemptions

Summary

Central to any freedom of information (FOI) regime is the existence of exemptions. In this chapter there will be an analysis the case law on exemptions. It sets out the content of the exemptions themselves and provides background analysis. A frequent question is: ‘With so many exemptions what's the point of having a Freedom of Information Act (FOIA)’? A brief answer is that it allows access to information otherwise not available and most regimes place the burden of justifying non-disclosure on those seeking to withhold it. While the UK FOIA contains many exemptions that are similar to those present in overseas laws, there are some peculiar characteristics of the UK law. There are twenty-three exemptions (in reality more than this) including ss. 12 and 14 (below). Apart from these two exemptions, all the others are in Pt II of the Act. Eight exemptions are absolute (below). Seventeen are on a class basis. In a class exemption, disclosure of any document within the class is ipso facto damaging although PI disclosures may be made under s. 2 where they are not absolute exemptions. In the case of the other exemptions where ‘prejudice’ or damage would be caused by the disclosure because of their contents, an exemption may be claimed on the basis of the prejudice caused. However, the Commissioner may make a judgement on whether ‘prejudice’ exists and whether, if it exists, it is de minimis.