FOI Act section

The Exemption

Public Interest Test

or

Absolute Exemption

22

Information intended for future publication need not be disclosed. This applies where publication was planned at the time the request was made and where it is reasonable that the information is not disclosed until the intended date of publication.

PI

21

Information accessible to the requestor by other means. This applies where the information requested has already been made available for example via the Brighton & Hove City Council Publication Scheme or is already available by virtue of other legislation. The information requested, must for this exemption to apply, be reasonably accessible to the requestor.

AE

30

Investigations and proceedings conducted by public authorities. This exemption may apply to information held for the purpose of criminal investigations and proceedings, and information obtained from confidential sources relating to these or civil proceedings arising from them.

PI

31

Law enforcement. Information not covered by section 3 above, and which may prejudice an investigation and conduct, including prevention of crime, assessment and collection of taxes, regulatory enforcement, health & safety, and any civil proceedings.

PI

32

Court Records. This exemption covers information that is only held as part of the document for a court or tribunal case or a statutory enquiry.

AE

33

Audit Functions. This exemption applies to information held by Brighton & Hove City Council relating to audit or examining the economy, efficiency and effectiveness of the use of resources of other public authorities. Information is exempt if its disclosure is likely to prejudice these functions. It does not cover Internal Audit.

The Audit Commission Act 1998 states that No information obtained by an auditor shall be disclosed unless we have -

 A person who discloses information in other circumstances is guilty of an offence and liable to prosecution.

PI

40

Personal Information. If an individual makes a request for their own personal data, then this is dealt with and the Data Protection Act 1998 and the subject access provisions. There is an Absolute Exemption.

If a 3^rd party requests personal information i.e. not their own personal data, then disclosure is decided in accordance with the Data Protection Act 1998 and the 8 principles of data protection, but within the overall framework of the FOIA. Therefore the Public Interest test applies.

Brighton & Hove City Council must comply with the following eight Data Protection Principles in relation to the personal data they hold:

In dealing with requests for disclosure of information, the Human Rights Act 1998 article 8 Right to respect for private and family life, will also need to be considered. Will disclosure of information impinge on individuals right for respect for their private and family life?

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

AE

PI

41

Information Provided in Confidence. This exemption applies where there would be a breach of confidence. Brighton & Hove City Council should only accept information from 3^rd parties in confidence if it is the only way of obtaining the information and the information is needed to carry out any of the Brighton Hove City Council's functions.

Brighton & Hove City Council must not agree to hold information received from 3^rd parties in confidence, which is not confidential in nature. Acceptance of any confidentiality provisions must be for good reason and must be justified to the Information Commissioner if asked.

AE

42

Legal Professional Privilege. This exemption applies where a claim of legal professional privilege could be maintained in legal proceedings. An example of this would be correspondence between Brighton & Hove City Council Legal Services Unit and their client such as legal advice and assistance could be exempt.

PI

43

Commercial Interest. This exemption applies to trade secrets, and to information which if disclosed would, or would likely to, prejudice the commercial interests of any person, including the authority holding it. This exemption is particularly relevant to Brighton & Hove City Council in the tendering process and the award of contracts negotiated with suppliers.

When entering into contracts the Council should refuse to include contractual terms, which purport to restrict the disclosure of information held by the Council and relating to the contract beyond the restrictions permitted by the FoI. The Council should not agree to hold information 'in confidence' which is not in fact confidential in nature.

When entering into contracts with non-public authority contractors, the Council may be under pressure to accept confidentiality clauses so that information relating to the terms of the contract, its value and performance will be exempt from disclosure. The Council should not accept such clauses where this is commercially viable.

Any acceptance of such confidentiality provisions must be for good reasons and capable of being justified to the Commissioner.

It is for the Council to disclose information according to the FoI Act, and not the contractor.

However, the Council may need to protect from disclosure by the contractor information, which would be exempt from disclosure under the FoI, by appropriate contractual terms. Apart from such cases, the Council should not impose terms of secrecy on contractors.

Appendix A shows the Brighton & Hove City Council FOI statement which will be used on all tender and contract documents originating from Brighton & Hove City Council.

PI

38

Health and Safety. This exemption applies to any information Brighton & Hove City Council might disclose that would or would be likely to endanger the physical, mental health or safety of an individual.

PI

39

Environmental Information. If Brighton & Hove City Council must disclose environmental information in accordance with environmental information regulations, then disclosure does not fall under the FOIA.The release of environmental information is currently subject to the Environmental Information Regulations 1992 (as amended 1998) (EIRs). These will be replaced by revised regulations to be brought into force by 14 February 2005. The effect of the exemption is that release of environmental information must be decided in accordance with these regulations. It should be noted that the definition of environmental information is broad. For example, in addition to information which is self-evidently environmental, it includes:

While the terms of the Regulations align closely with the FOI Act, there are a number of differences, the most relevant of which in the context of the s.43 exemption relate to `the confidentiality of commercial and industrial information'; when the request relates to information on emissions into the environment, refusal of the request would be difficult to justify under the regulations.

PI

44

Legal Prohibition. This exemption applies where Brighton & Hove City Council is prohibited in disclosing information by an enactment or the disclosure would constitute a contempt of court e.g. information relating to investigations and proceedings conducted by Brighton & Hove City Council. This exemption applies where a claim to legal professional privilege could be maintained in legal proceedings.

AE

26

Defence. Information likely to be damaging to national defence or armed forces.

PI

23

Security Matters. Information relating to security and signed by an MP is proof of exemption.

AE

24

National Security. Information relating to and needed to safeguard national security and signed by an MP is proof of exemption.

PI

25

Certificates under ss. 23 and 24: supplementary provisions

(1) A document purporting to be a certificate under section 23(2) or 24(3) shall be received in evidence and deemed to be such a certificate unless the contrary is proved.

(2) A document which purports to be certified by or on behalf of a Minister of the Crown as a true copy of a certificate issued by that Minister under section 23(2) or 24(3) shall in any legal proceedings be evidence (or, in Scotland, sufficient evidence) of that certificate.

(3) The power conferred by section 23(2) or 24(3) on a Minister of the Crown shall not be exercisable except by a Minister who is a member of the Cabinet or by the Attorney General, the Advocate General for Scotland or the Attorney General for Northern Ireland.

27

International Relations. Information referring to international relations and likely to prejudice the UK's international relations.

PI

28

Relations within the UK. Any information likely to prejudice the relations between the national UK administrations.

PI

29

The Economy. Information likely to damage the interests of the UK economy.

PI

35

Formulation of Government Policy. Relates to information held by a government department relating to formulation of government policy.

PI

36

Prejudice to the effective conduct of public affairs. Requires a minister of the crown authority to authorise this exemption. Absolute exemption for information held by either House; public interest test applies for other information.

PI

AE

37

Communications with her Majesty. This relates to communications with her Majesty, members of the royal household regarding honours.

PI

34

Parliamentary Privilege. Signed by Speaker for the House is needed as proof that exemption is justified.

AE

Section

16

Incomplete Request. When a requestor who has received assistance and prompting from Brighton & Hove City Council, does not give enough of a description of the information that they seek to allow that information to be identified.

ND

9

Non-Payment. When a requestor, who has received a fees notice, does not pay the fee within 3 months

ND

12

Cost of Locating Information. When the reasonable cost of locating and providing the requested information exceeds the appropriate amount. The appropriate amount is likely to be £450.00 The FOIA also allows the aggregation of multiple requests from the same person, or different person appearing to act in concert.

ND

14

Repeated or Vexatious Requests. If a requestor makes repeated requests or vexatious requests, then Brighton & Hove City Council may refuse disclosure if information has already been supplied to the requestor.

ND