|
The
Absolute Exemptions are summarised below
| Section
21 |
Information
accessible by other means |
|
Section 23 |
National
Security |
| Section
32 |
Court
Records |
| Section
34 |
Parliamentary
Privilege |
| Section
36 |
Effective
conduct of Public Affairs (only in relation to
information held by Parliament) |
| Section
40 |
Personal
Information |
| Section
41 |
Information
provided in confidence |
| Section
44 |
Prohibitions
on Disclosure |
Section
21: Information Accessible to Applicant by Other means
This applies to information that is already reasonably
accessible to the applicant. It recognises that the
right of access under the Freedom of Information Act
2000 is supplementary to the very many ways in which
public authorities already provide information to
members of the public. For example, section 21 will
apply if information is included on a public authority's
publication scheme or if the public authority is under
a statutory obligation to give out the information
to members of the public on request.
HSC
Guidance says:
"Examples of this type of information covered
by this exemption include books and pamphlets (including
priced publications) published by HSC or HSE, information
available full text on the HSE website and copies
of Acts of Parliament and statutory instruments"
Section
23: Information Supplied by, or Related to, Bodies
Dealing with Security Matters
This applies to two categories of information:
| a |
information
supplied directly or indirectly by the Security
Bodies that are listed in section 23(3) (this
includes the Security Service, the Secret Intelligence
Service and GCHQ). Whether this aspect of section
23 applies in a particular case will turn on the
source of the information; and |
| b |
information
that relates to one of the Security Bodies. The
application of this part of section 23 will turn
on the content of the information. |
This
will rarely apply in relation to information sought
from the HSE.
Section
32: Court Records
This exempts information contained in certain litigation
documents and court, tribunal and inquiry records
and will apply regardless of the content of the information.
There are separate and specific regimes for gaining
access to court and tribunal records and section 32
ensures that those regimes are not superseded by the
FOI Act. Section 32 will apply only if the public
authority concerned holds the information solely because
it was contained in one of the specified documents
and applies regardless of the content of the information
This
could have significant bearing in relation to information
concerning investigation and prosecution material.
Other sections relating to law enforcement (31) and
investigation and prosecutions (32) - which are qualified
exemptions - could also be relevant to a request to
which this section could apply
Section
34: Parliamentary Privilege
This applies to information whose exemption is required
in order to avoid an infringement of the privileges
of either House of Parliament. The purpose of section
34 is to preserve Parliamentary privilege and protect
the position of Parliament. It will need to be considered
where a public authority is required to lay information
before Parliament before disclosing it to anyone else.
If privileged information has been published by Parliament
then section 34 will not apply. Section 34(3) enables
the Parliamentary authorities to conclusively certify
that section 34 applies.
Section
40: Personal Information
This section concerns personal data within the meaning
of the Data Protection Act 1998. Section 40 applies
to two distinct types of requests for information:
| a |
if
a request asks for the personal data of the applicant
himself, the information is exempt; and |
| b |
if
a request asks for the personal data of someone
else then that information will be exempt if its
disclosure would contravene any of the data protection
principles in the Data Protection Act 1998 (or
certain other provisions of the Data Protection
Act 1998). |
If
information is exempt under section 40 because it
is the personal data of the applicant then its disclosure
must be considered under the subject access provisions
in the Data Protection Act 1998; the Act may require
the disclosure of information which would otherwise
have been exempt under the FOI Act. For most government
departments that receive requests for personal data
of someone other than the applicant, the application
of section 40 will in most circumstances turn on whether
disclosure of the information to a member of the public
would be 'unfair'.
This
would, for example, impact upon requests relating
to the identify of people who have died or been injured
Section
41: Information Provided In Confidence
This section applies to information that has been
obtained from another person and whose disclosure
to the public would constitute an actionable breach
of confidence. Section 41 will only apply where a
person would be able to bring a successful action
for breach of confidence as a result of disclosure
to the public. Section 41 is not subject to a public
interest balance imposed by the FOI Act. But, the
courts have recognised that a person will not be successful
in an action for breach of confidence if the public
interest in disclosure outweighs the public interest
in keeping the confidence. The application of section
41 may require detailed consideration of the law of
breach of confidence.
Section
44: Prohibitions On Disclosure
This section applies to three distinct categories
of information:
| a |
If
there is an existing statutory bar to the disclosure
of information by a public authority then that
information will be exempt. Prior to the FOIA,
section 28 of the Health and Safety at Work Act
1974 was such a statutory bar – but this
has now been amended so that it has no effect
in relation to FOIA requests. The Human Rights
Act 1998 can be a statutory bar to the disclosure
of information if to do so would breach one of
the Convention rights that have been incorporated
into domestic law. |
| b |
If
disclosure would be incompatible with a European
Community obligation then the information will
be exempt; and |
| c |
information
that relates to one of the Security Bodies. The
application of this part of section 23 will turn
on the content of the information. |
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