Line to take - LTT48 - Relevant and non relevant public interest factors

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  • Section/Regulation: s2
  • Issue: Relevant and non relevant public interest factors
  • Source Information Tribunal
  • Details: Hogan / Oxford City Council (17/10/06), Guardian & Brooke / BBC (8 January 2007)
  • Related Lines to Take: LTT14, LTT49
  • Related Documents: EA/2005/0026 and EA/2005/0030 (Hogan/Oxford), EA/2006/0011 and EA/2006/0013 (Guardian/Brooke), Awareness Guidance 3
  • Contact: EW
  • Date: 06/06/2007
  • Policy Reference LTT48
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Relevant factors in considering the public interest test are the likelihood of prejudice (if applicable), the specific circumstances of the case, the age of the information, PIT factors inherent in the exemption, and general arguments concerning transparency, accountability and participation. Non relevant factors include the identity of the applicant, private interests, and the complexity of the information.

Further Information

In the case of Hogan and Oxford City Council v The Information Commissioner the Information Tribunal provided a number of considerations relevant to the application of the public interest test. These were reiterated by the Tribunal in the case of Guardian & Brooke v The Information Commissioner& the BBC, and are as follows:

  • In the case of prejudice based exemptions, the lower the likelihood of prejudice is shown to be, the lower is the chance that the public interest will favour maintaining the exemption. Although not mentioned by the Tribunal, the severity of the prejudicial effects will also be a factor.
  • Public authorities may not maintain blanket refusals in relation to classes of information. Although a public authority may have a general policy that certain information is more likely not to be disclosed because the public interest favours maintaining the exemption, “such a policy must not be inflexibly applied and the authority must always be willing to consider whether the circumstances of the case justify a departure from the policy” (para 57).
  • In general, the public interest in maintaining the exemption will diminish over time. This is supported by the fact that s63 provides that a number of exemptions no longer apply after specified periods of time. The duration of each exemption is available in the annex to the DCA’s guidance to the exemptions.*
  • In considering the public interest in maintaining the exemption, only the public interest expressed explicitly or implicitly in that exemption should be taken into account. This is discussed further in LTT14.
  • The public interest factors in favour of disclosure are, “broad ranging and operate at different levels of abstraction from the subject matter of the exemption” (para 60). Relevant considerations will therefore include the argument that disclosure promotes better government through transparency, accountability, public debate, better public understanding of decisions, and informed participation in the democratic process.

The Tribunal (in the Hogan case) also identified the following factors which are not relevant in considering the public interest:

  • The identity or motive of the applicant.
  • Private interests, as opposed to public interest.
  • The possibility that the requested information could be misunderstood, or could be considered to be too technical and complex.

In addition, it should be noted that the public interest is not necessarily the same as what the public finds interesting. The Tribunal in the case of Guardian & Brooke v The In formation Commissioner & the BBC, quoted Lord Wilberforce in British Steel Corp v Granada Television Ltd 1981 who stated that, “There is a wide difference between what is interesting to the public and what it is in the public interest to make known” (para 34).

(*) This should not be confused with the spurious argument that there is greater public interest in the disclosure of information which is nearly thirty years old (for example) simply because it is likely to be disclosed soon anyway. This is discussed further in LTT49.