Line to take - LTT49 - Age of information

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  • Section/Regulation: s2, s63
  • Issue: Age of information
  • Source: Information Tribunal
  • Details: Hogan / Oxford City Council (17/1 0/06), Guardian / Avon & Somerset Police (05/04/07)
  • Related Lines to Take: LTT48
  • Related Documents: EA2005/0026 & EA/2005/0030 (Hogan), EA/2006/0017 (Avon & Somerset)
  • Contact: EW
  • Date: 06/06/2007
  • Policy Reference: LTT49
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

When considering the public interest test, the age of the information requested is a relevant factor to the extent that, in general, the public interest in maintaining the exemption will diminish over time. The fact that information is nearing the age at which an exemption ceases to apply is not, however, in itself, a relevant factor.

Further Information

The age of requested information is a relevant public interest factor because in many cases it can be seen that its sensitivity decreases over time. Section 63 supports this general principle, in so far as it provides that certain exemptions will no longer apply to information contained in an historical record. Exemptions have durations of 30, 60, or 100 years or are unlimited.

The Tribunal in the case of Hogan and Oxford City Council v the In formation Commissioner made this point, stating, “The passage of time will also have an important bearing on the balancing exercise. As a general rule, the public interest in preventing disclosure diminishes over time, as reflected by the fact that a number of FOIA’s exemptions cease to apply after specified periods of time (see for example s63).”

However, the simple fact that information is nearly thirty years old — and therefore the age at which the exemption ceases to apply — is not relevant.

This point was clearly articulated by the Tribunal in the case of Guardian v the Information Commissioner and Avon and Somerset Police. It stated, “Parliament decided on thirty years, not twenty-seven [the age of the information in this case]. To use proximity as an excuse for disclosure would be to erode the interval which Parliament chose.” It further noted that future disclosure was not in any event certain as other exemptions may apply.

This supports the original DN where the argument that there may be a public interest in disclosing material where the 30 year limit is approaching was considered and rejected. The DN stated: “The fact that Parliament has explicitly provided, in section 63(1) of the Act that information which is exempt under section 30(1) should lose that exemption thirty years after it was created suggests that there is a public interest in maintaining the exemption for the thirty year period unless there are strong public interest arguments in favour of disclosure. This may apply with greater force in situations where there have been expectations that the “30 year rule” will be applied and that date is approaching”.

For example, in considering information which is 28 years old to which section 35 has been applied, it may be relevant to argue that the information is less sensitive than ‘similar’ information which is two years old, and that there is therefore greater public interest in its being disclosed. It will not, however, be relevant to argue that it should be disclosed because disclosure will occur in the near future anyway.