Line to take - LTT21 - Exemptions and exceptions not claimed by a public authority

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  • FOI/EIR: FOI, EIR
  • Section/Regulation: s50, reg 18
  • Issue: Exemptions and exceptions not claimed by a public authority
  • Source: Information Tribunal
  • Details: Bowbrick / City of Nottingham (28 September 2006); King / DWP (20 March 2008); DBERR / Friends of the Earth (29 April 2008); Ofcom (4 September 2007); Home Office and MoJ v ICO (20 November 2008)
  • Related Lines to Take: LTT63, LTT92
  • Related Documents: FS50063475, EA/2005/0006 (Bowbrick), EA/2007/0085 (King), EA/2007/0072 (DBERR), EA/2006/0078 (Ofcom), EA/2008/0062 (Home Office/MOJ)
  • Contact: PB/LB/GF
  • Policy Reference: LTT21
  • Date 23/02/2009
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Where a public authority has not referred to a particular exemption or exception when refusing a request for information, the Commissioner may exercise his discretion and decide whether, in the circumstances of the case, it is appropriate to take the exemption or exception into account if it is raised in the course of his investigation.

The Commissioner is under no positive duty to consider exemptions or exceptions which have not been referred to by a public authority but may do so if it seems appropriate to him in any particular case.

Further Information

In Bowbrick v Nottingham City Council, the Tribunal considered, as an aside to the main issues raised by the appeal, the correct approach to be taken in a case in which the public authority only refers to an exemption after the Commissioner has commenced an investigation. The Tribunal found that the Commissioner was obliged to consider the application of the exemption. In his decision, the Commissioner would almost inevitably find, however, that the public authority had failed to issue a proper refusal notice.

The Tribunal considered this matter again in King v Information Commissioner and the Department for Work and Pensions. It found that “the Commissioner and the Tribunal have the power to consider exemptions raised in front of them for the first time. Whether it will consider a recently raised exemption will depend on the facts in each case” (Tribunal’s emphasis) (para 55). This statement suggests that the Commissioner has discretion as to whether to consider exemptions raised before him for the first time.

The issue was clarified in the Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friends of the Earth. The Tribunal questioned “whether a new exemption can be claimed for the first time before the Commissioner” and concluded that the Tribunal (and presumably the Commissioner) “may decide on a case by case basis whether an exemption can be claimed outside the time limits set by [sections] 10 and 17 depending on the circumstances of the particular case”. The Tribunal also added that “it was not the intention of Parliament that public authorities should be able to claim late and/or new exemptions without reasonable justification otherwise there is a risk that the complaint or appeal process could become cumbersome, uncertain and could lead public authorities to take a cavalier attitude towards their obligations”. The ICO has adopted this approach.

When assessing the circumstances the Commissioner must carefully consider his obligations as a public authority under the Human Rights Act 1998 (HRA), which prevent him acting incompatibly with rights protected by the HRA. It will therefore be difficult for the Commissioner to refuse to consider any exemptions that relate to rights under the convention (e.g. articles 6 and 8). This would include sections 38 and 40 and in some cases 30, 31 &41.

Given the circumstances surrounding National Security it would also be difficult to envisage a circumstance where the Commissioner would refuse to consider sections 23 and 24 as late exemptions. The exemptions under sections 26 and 27 may also carry similar risks.

Factors which the Tribunal has accepted as being reasonable justifications for the application of exemptions before the Commissioner and/or the Tribunal for the first time include:

  • where some of the disputed information is discovered for the first time during the Commissioner’s investigation, and therefore the public authority has not considered whether it is exempt from disclosure (Bowbrick, DBERR);
  • where the authority has correctly identified the harm likely to arise from disclosure however applies these facts and reasoning to the wrong exemption (King);
  • where the public authority had previously failed to identify that a statutory bar prohibited disclosure of the requested information, and therefore ordering disclosure would put the public authority at risk of criminal prosecution (Ofcom); and
  • where the refusal notice was issued at an early stage of the implementation of the Act when experience was limited, although this factor is likely to become far less relevant in the future (DBERR).

In Bowbrick, the Tribunal also commented that the Commissioner was under no positive duty to consider exemptions not referred to by the public authority. However the Commissioner was entitled to do so in appropriate cases. For instance, it agreed with the Commissioner that it could refer in a decision notice to section 40, even though the public authority had not sought to rely upon that exemption. Another example given was a decision notice which might uphold the refusal of a request on the basis of section 31 (law enforcement) even though the public authority had only mentioned section 30 (investigations) in its refusal notice.

The Tribunal also stated that a public authority would not be entitled to appeal against a decision notice on the basis that the Commissioner ought to have considered a particular exemption which the public authority had not itself considered. However, where an appeal was by a complainant, the public authority was entitled to refer to exemptions not previously claimed. As described above, the Tribunal may use its discretion and consider the arguments put to it when determining the appeal.

In the case of Home Office and Ministry of Justice v ICO, the public authorities sought to rely, largely in the alternative, on other exemptions they had not previously raised either with the applicant or the Commissioner. The IT accepted a late claim for s40(2) (third party personal data) in light of the ICO’s jurisdiction for data protection, but rejected other claims of 31(1); 35(1)(a); 42 and 43(2). The IT stated that it did not accept that it was obliged to accept the late claiming of exemptions; and in this case saw no reasonable justification for doing so (paragraph 75).

We would request that any case officer wishing to not consider exemptions or exceptions raised for the first time during an investigation to seek advice from their Team Leader, the Head of FOI Complaints or from the Policy team.