What’s this document about?
/ To provide a summary of the main exemptions that can be applied to a request for information.Who does this apply to?
/ All staff involved in providing information who need to be aware of exemptions and the need to balance openness with confidentiality.Contents
/ There’s a detailed table of contents on the next page.Introduction 2
The exemptions 5
The public interest test 19
Table of exemptions 26
Related documents 27
Detailed table of contents
Contents
/ Introduction 3The exemptions 5
It's not information 5
We don’t hold the information 6
It’s manifestly unreasonable 7
It’s too general 8
Drafts and private thinking 9
Drafts 9
Internal communications 10
Confidential proceedings of a public authority 11
Commercial confidentiality 11
Volunteered confidential information 13
International relations, public safety and national security 14
Legal proceedings and investigations 16
If there’s a threat to the environment 16
Intellectual property rights 17
The information is personal 17
Subject access requests 17
Someone else’s personal information 18
Other rules of law 19
The requester has not paid 19
The public interest test 19
Overview 19
Factors in favour of disclosure 20
Factors in favour of withholding 21
Table of exemptions 26
Related documents 27
Introduction
Definition: exemptions
/ The Freedom of Information Act (FOIA) and the associated Environmental Information Regulations (EIR) operate on a presumption of disclosure unless there are good reasons to do otherwise. These ‘good reasons’ are referred to as exemptions.What the legislation states
/ EIR Regulation 12(1)(a): ‘subject to……………..a public authority may refuse to disclose environmental information requested if an exemption to disclosure applies under paragraphs (4) or (5); and(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.’
EIR Regulation 12(2)‘A public authority shall apply a presumption in favour of disclosure.’
What we cover here
/ As most of the information that we hold is ‘environmental information’ – see Glossary – we have summarised here the exceptions that fall under the Environmental Information Regulations. In the Table of exemptions, there is a table of all the exemptions available under both FOIA and EIR.What to do
/ Always seek further advice from the Information Access team or the Information Law Unit as soon as you think an exemption to release under FOIA or EIR may apply.In almost all cases where an exemption does apply, we need to balance the public interest in applying the exemption against the public interest in disclosure :
To refuse a request, see 399_04 Guidance on Refusing a request for information.
! Important
Information about emissions
/ Where the requested information relates to emissions to the environment, some of the exemptions do not apply.EIR Regulation 12(9)
‘To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exemption referred to in paragraphs (5)(d) to (g).’
The exemptions that cannot be applied to information about emissions are Regulations 12(5)(d) public authority proceedings, (e) commercial confidentiality, (f) volunteered information and (g) harm to the environment.
(See Policy Advice Note: The Overriding of Certain Confidentialities when the Request relates to information on emissions)
Information already publicly available and easily accessible to the requestor in another format
/ EIR Regulation 6 (1)‘Where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available, unless –(a) it is reasonable for it to make the information available in another form or format; or
(b) the information is already publicly available and easily accessible to the applicant in another form or format’.
We have determined that information on our Public Register qualifies as publicly available. We do not charge for inspection of public registers. If information is withheld from a public register in accordance with exemptions in the legislation creating them, a request for information will then have to be considered under the EIR. The exemptions may be different, the public interest test will apply and the emissions override may be relevant, so information withheld from the public register may have to be released. In this situation we apply EIR charges in the usual way.
Information approved for access
/ This class of information is where policy and legal checks have already been made to determine that a specified category of information is safe to release to the public. No further confidentiality checks are needed before disclosure. For a list of classes of information that are Approved for Access, see the Publication Scheme.The exemptions
Exemptions
/ This chapter describes the following exemptions:Topic / See page
It's not information / 5
We don’t hold the information / 6
It’s manifestly unreasonable / 7
It’s too general / 8
Drafts and private thinking / 9
Commercial confidentiality / 11
Volunteered confidential information / 13
International relations, public safety and national security / 14
Legal proceedings and investigations / 16
If there’s a threat to the environment / 16
Intellectual property rights / 17
The information is personal / 17
Other rules of law / 19
The requester has not paid / 19
It's not information
Description
/ There is not an exemption, as such, written into FOIA or EIR, but when the request is to supply something which is not ‘information’, the rules do not apply.Example: We are asked for our opinion or to give advice. It’s only a request for information if that opinion or advice already exists in writing. It is not in this case necessary to use the standard refusal or partial refusal letter. It is adequate to use the following paragraph, but in addition, you must add the appeals paragraph from the standard refusal letter.
Standard paragraph
/ ‘You have made a request to us which is not for information and therefore the Environmental Information Regulations and the Freedom Of Information Act do not apply. We are able to advise you as follows:…………………’Doc No 387_04 / Version 2 / Last printed 09/04/10 / Page 7 of 27
We don’t hold the information
Description
/ EIR Regulation 3(2) states that information is held if it is in our possession and has been produced or received by us, or it is held by another person on our behalf at the time the request is received.We still hold it if it is in our possession even if it is owned by someone else - and even if they say it is on loan. We also hold it for EIR if someone else holds on our behalf.
What to do
/ The table below describes what our actions might be:If… / then…
a public authority is holding information because it is acting in a judicial or legislative capacity / the EIR do not apply. This will rarely apply to the Environment Agency.
we don’t hold the information / the duty to answer a request for information does not arise. But we must try to point them in the right direction (see 389_04 Requests for Information regarding external transfers).
If we transfer, we are obliged to write a refusal letter.
we do not hold and we cannot transfer / consider issuing a refusal letter if appropriate and always formally respond.
Relevant exemption Regulation 12(4) / A public authority may refuse to disclose information to the extent that -
(a) it does not hold that information when an applicant's request is received;
Standard paragraphs
/ If there is not an external transfer:‘The duty to make information available to you under EIR Regulation 5(1) does not arise because in accordance with EIR Regulation 3(2) we do not hold the information you have requested’.
If there is an external transfer also add:
‘We have complied with our duty under EIR Regulation 10 to transfer your request by [sending it to the public authority that we believe does hold it, namely: contact name, address, phone, email / by providing you with contact information for the public authority that we believe does hold it, namely: contact name, address, phone, email]’
‘EIR Regulation 12(4)(a) also applies – we do not hold the information that you have requested’.
In both cases add the standard appeal paragraph from the standard refusal letter.
It’s manifestly unreasonable
What to do
/ We need to provide advice and assistance when the information requested is such that it is unreasonable to provide it. Try to help the customer re-word the request into one that meets their needs, but that we can satisfy. Even if we end up having to refuse a request, we want to be seen as helpful and open! See 388_04 Guidance on giving advice and assistance.We’ve included details on the following:
§ Unreasonable in terms of time;
§ Unreasonable in terms of persistent/ harassing requests.
Unreasonable in terms of time
/ The relevant exemption EIR Regulation 12(4)‘A public authority may refuse to disclose information to the extent that -(b) the request for information is manifestly unreasonable’.
Standard paragraph‘The exception under EIR Regulation 12(4)(b) applies as the request is manifestly unreasonable in that it would take [etc. details of timing to collate and redact the information]‘.
We interpret unreasonable in terms of the time it would take to comply with the request – which means that we will be diverted from carrying out our other statutory duties.
§ up to £450 (roughly two days work) is always reasonable;
§ £450 to £1,000 (roughly four days work) is normally unreasonable, but an Area or Region uses its discretion depending on the circumstances;
§ over £1,000 is almost always unreasonable - make national checks before agreeing to such a request.
Unreasonable in terms of persistent/ harassing requests
/ From time to time, we receive requests which create a disproportionate burden on our resources, either because they are frivolous or because the requester is so persistent that they have the effect of harassing us.Examples: Repeated requests for the same information in a short space of time or information containing offensive language.
Generally, it is the request, and not the enquirer, which must be ‘manifestly unreasonable’. Where you suspect that a request is manifestly unreasonable, ask yourself the following two questions:
1. Would you find the request manifestly unreasonable if it came from a member of the public that you have not dealt with before?
2. Would a reasonable person find the request manifestly unreasonable?
If you decide the request is manifestly unreasonable, it may be appropriate to refuse to comply with the request.
The refusal letter must indicate that we are refusing to enter into further correspondence on the matter and are relying on the exemption under regulation 12(4)(b).
Deal with each request on a case by case basis. In particular, in the case of persistent requests for the same information, after a reasonable interval has elapsed between requests, the request may no longer be manifestly unreasonable.
When assessing what is a reasonable interval, consider whether the situation has changed between the previous and the current request. Has new information come to light in the meantime which can be released.
It’s too general
The relevant exemption EIR Regulation 12(4)
/ ‘A public authority may refuse to disclose information to the extent that -(c) the request for information is formulated in too general a manner and the public authority has complied with regulation 9’.
If a request is too general in nature, regulation 9 is the duty on a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants – see ‘Guidance on giving advice and assistance’. If we have given advice and assistance and are still not able to identify the information sought, we can consider this exemption. Public interest factors of particular relevance will be the amount of time it would take to further seek to identify information and diversion of Environment Agency resources to do this.
Standard paragraph / ‘EIR Regulation 12(4)(c) applies - we may refuse to disclose information to the extent that the request for information is formulated in too general a manner and we have complied with our duties under EIR Regulation 9 to provide you with advice and assistance. We refer to the advice and assistance we have given in our [phone calls dated../ emails of…. etc]. We have remained unable to identify the information that you have requested so that we could collate and consider it for release.’
Doc No 387_04 / Version 2 / Last printed 09/04/10 / Page 7 of 27
Drafts and private thinking
Three potential exemptions
/ There are three potential exemptions which may be relevant here and there will be times when the exemptions overlap and it is appropriate to consider and apply more than one. These are described below:§ drafts;
§ internal communications;
§ confidential proceedings of a public authority.
Drafts
The relevant exemption EIR Regulation 12(4) / A public authority may refuse to disclose information to the extent that –(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data.
What to do
/ The table below lists possible requests related to drafts.Item / Possible action /
1 / You might withhold a draft if it’s reasonable for the customer to wait for publication. This might depend on the issue and the time until expected publication or when the incompleteness could make it misleading – although often an explanation might clarify this.
2 / A request might be for drafts even after the final version of a document has been released.
Consider public interest factors – whether it was appropriate to protect ‘thinking in private’ and whether it would cause harm to a decision making process to release provisional stages and early thought processes.
3 / A draft could be a completed stage in a process and might be complete in itself. A mere label of ‘draft’ on a document must not be accepted at face value.
If there is a set of facts and figures which are complete within a draft document where perhaps the conclusions have not been finalised, then those facts and figures may well not themselves be ‘draft’. You must consider releasing them.
4 / If relevant, specify an estimated time for completion of the draft. Although we are not obliged to send out when complete, we may choose to do so in the interest of customer service.
Standard paragraph / ‘EIR Regulation 12(4)(d) applies because the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data. To release information at this stage would ……………. As relevant: We anticipate that the final information will be completed [date]. […public authority] are also preparing the information.’
Also note: Regulation 14(4) requires that if the exemption in regulation 12(4)(d) is specified in the refusal, the authority shall also specify, if known to the public authority, the name of any other public authority preparing the information and the estimated time in which the information will be finished or completed.
Internal communications
The relevant exemption EIR Regulation 12(4) / ‘A public authority may refuse to disclose information to the extent that –(e) the request involves the disclosure of internal communications.’
Internal communications include internal emails, attendance notes, minutes of meetings, records of phone conversations, recommendations and briefing notes etc.
What to do