Line to take - LTT101 - Failure to cite specific exemption section number (FOI)

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  • FOI/EIR: FOI
  • Section/Regulation: s17(1)(b)
  • Issue: Failure to cite specific exemption section number
  • Source: GS; Policy Team
  • Details: n/a
  • Related Lines to Take: LTT102
  • Related Documents: n/a
  • Contact: HD
  • Date: 15/09/2008
  • Policy Reference LTT101
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

A public authority will breach s17(1)(b) where it only refers to any exemption claimed by name or description of the subject matter of the exemption.

The Commissioner will also find a breach of s17(1)(b) when a public authority fails to cite the sub-section, sub-section, paragraph and sub-paragraph (where appropriate) where multiple limb exemptions are claimed.


Further Information

In the past, a discretionary approach to this issue has been utilised so that, for example, where a public authority failed to cite s42 but used the words “legal professional privilege”, this was not considered a breach whereas the public authority using the phrase ‘commercially sensitive information’ without reference to s43 may have been held to be in breach of s17(1)(b).

Now, as a matter of good practice and to promote consistency, the Commissioner will adopt the following approach:

Where a public authority only refers to the exemption by name or description this will be a breach of s17(1)(b) —the obligation to “specify the exemption in question”. For example, where a public authority just uses the words ‘law enforcement’ or ‘confidential information’ without reference to any section number, this will be a breach of s17(1)(b).

Further, where a public authority is relying upon a multiple limb exemption, there will be a breach of s17(1)(b) where the public authority fails to provide the section, section, paragraph and sub-paragraph as without this level of detail, the complainant cannot be certain of the grounds on which the information is being withheld. For example, where a public authority just cites s31(1), the complainant could not be certain which of the many law enforcement activities mentioned therein would be prejudiced by the disclosure of the withheld information and thus would be unable to adequately challenge its application. Therefore, the Commissioner would expect to see the full section details provided for clarity (i.e. s31(1)(g) by virtue of s31(2)(d)) and failure to do so will result in the Commissioner finding a breach of s17(1)(b).

However where a public authority claims a single limb exemption, there will be no breach of s17(1)(b) if the public authority only refers to the section number as with a single limb exemption it could not be said to be unclear what was being relied on. For example, where a public authority just cites s41, the applicant can understand that the information is being withheld on the grounds that it was provided in confidence and adding the further detail (i.e. s41(1)(a) & (b)) does not further assist the complainant.

For convenience in applying this line, the following table highlights which exemptions will be considered as single or multiple limbed for the purposes of finding s17(1)(b) breaches:

Single limbed exemptions

  • Sections 21, 22, 24, 28, 34, 39, 41, 42

Multiple limbed exemptions

  • Sections 23, 26, 27, 29, 30, 31, 32, 33, 35, 36, 37, 38, 40, 43, 44

Note

Given the stance adopted above and as the ICO is the body responsible for promoting good FOIA practice, all decision notices should, where appropriate, cite the section and subsection number, paragraph and sub-paragraph.