Freedom of Information Act Awareness
Guidance No 7
Information Intended for Future
Publication
The Information Commissioner’s Office (ICO) has produced this guidance as part
of a series of good practice guidance designed to aid understanding and
application of the Freedom of Information Act 2000. The aim is to introduce
some of the key concepts in the Act and to suggest the approaches that may be
taken in response to information requests.
The guidance will be developed over time in the light of practical experience.
Here we consider the exemption from the duty to provide information on request
when that information is intended for future publication. The exemption is set out
in section 22 of the Act.
A) WHAT DOES THE ACT SAY?
The Act provides an exemption from the
right to know if the information
requested by an applicant is intended for future publication. To be covered by the
exemption, the information must be held with the intention of publication at the
time the request was made. It will not be permissible to argue an intention to
publish the information when that decision was only made after the request was
made. It is not, however, necessary to have set a publication date. Publication
will often be publication in accordance with the publication scheme of the public
authority.
The exemption also covers information held by the authority which another
person (whether an individual, a company or another public authority) intends to
publish. This is a situation which may arise reasonably frequently. For instance
one public authority may have been given a draft of a document which another
intends to publish.
The exemption is not, however a blanket one. A public authority may only rely
upon it “if it is reasonable in all the circumstances to do so”. The exemption is
also subject to the public interest test (see
Awareness Guidance No 3).
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B) INFORMATION WHICH MAY BE COVERED
Potentially there is a large range of information which may be covered by the
exemption. It may be helpful to distinguish between information which has been
prepared for publication, (for instance press releases, the text of official
announcements and speeches, annual reports and publicity materials) and
information which exists in draft form. There may also be issues to consider in
relation to some types of research. The information which it is intended to publish
will frequently fall within a class of information defined in the authority’s
publication scheme, although there is no necessary link between the exemption
and a scheme.
The two key questions to ask in all cases are:
•
Is there in fact an intention to publish the information requested?
(Where information has already been prepared for release - see below-
there will be no question as to whether there is an intention to publish.
However, where the information exists only in draft form or where it forms
part of a larger body of information, then it may be more difficult to rely
upon the exemption.)
and,
•
Is the information which is intended for publication in fact the
information which the applicant has requested? (For instance, if an
applicant asks for the reasons why a planning authority turned down an
application, it may not be sufficient to inform the applicant that a policy
document setting out the basis of planning decisions is due to be
published when, in fact, the applicant wants to know how a particular
application was decided.)
a) Information prepared for release
If information has been prepared for release, a publication date will have
generally have been set. Given that there is an intention to release information,
the question of whether to claim the exemption will be a question about the timing
of disclosure, not about the harm that might result from the release of the
information in itself.
b) Drafts
The exemption may also cover some information which has not yet been
prepared for publication. Although it does not apply to drafts in general, it may
cover drafts of documents intended for publication. These may be the subject of
an internal consultation exercise or an exercise involving a limited number of third
parties.
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The key issue is the likelihood of publication. For the exemption to be claimed
there must be a firm intention to publish the information at the time the request is
received. The fact that the information contained in a draft may be subject to
amendment or may be omitted from the final published version of the information
does not mean that it would be wrong to claim the exemption.
When thinking about drafts, it may also be necessary to distinguish between the
information which the authority proposes to publish and associated background
information, for instance discussion papers, which may have been prepared in
order to assist in decisions as to publication but are not, themselves intended for
publication.
At the same time, it may also be helpful to remember that the Act is concerned
with information rather than documents. The fact that the words of the final
document may differ from those of earlier drafts does not necessarily mean that
the information is not the same.
c) Research
The exemption is not designed to protect information held for research purposes
in general. In some instances, however, research may be carried out with a
settled intention to publish.
For instance a government department may commission annual research into
public attitudes towards its services. If it is intended when commissioning the
research to publish the findings, then it may be reasonable to claim the
exemption.
By contrast, another department is carrying out research into an area of social
policy. Having conducted its research and identified a number of policy options, it
decides to issue a consultation paper. While drafts of the consultation paper may
be covered by the exemption, the information generated by the research
programme which preceded it is unlikely to be covered since there was no clear
intention to publish that material.
The Freedom of Information (Scotland) Act covers Scottish public authorities.
The Scottish Act contains an exemption for information held for research
purposes. For more information, contact the Scottish Information Commissioner:
www.itspublicknowledge.info)
d) Information published in accordance with publication schemes
Section 19 of the Act requires authorities to publish information in accordance
with their publication schemes. If the information which has been requested falls
within a class of information defined in an authority’s scheme, then it will clear
that the information is intended for publication if it has not already been
published. The issue for public authorities in this case will be to decide whether
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the public interest requires an earlier release of information to the applicant than
its original timetable had envisaged.
C) DECIDING WHAT IS “REASONABLE IN ALL THE CIRCUMSTANCES”
AND APPLYING THE PUBLIC INTEREST TEST.
In some ways this exemption is similar to that in section 21 (
Information
Reasonably Accessible to the Applicant by Other Means – see Awareness
Guidance No 6). In that case the exemption applies to information currently
available to the applicant: in this case it applies to information which will be
available in the future. In both cases, the underlying thinking is that if the
applicant can or will be able to obtain the information he or she wants by another
means, there is no need for a separate statutory route.
However in the case of section 22, since the requested information is not yet
available, the public authority must consider whether it should keep to the original
timetable for publication or whether the circumstances of the case, including the
public interest, would warrant earlier disclosure.
a) The timing of publication
Given that there is already an intention to publish, the critical issue in deciding
whether to respond to a request for information is one of timing. Generally, the
sooner the intended date of publication, the better the case for maintaining the
exemption.
There are a number of reasons why an authority might want to follow its original
publication schedule:
• The release of information to the applicant may result in unfairness to
others. For instance, the information may consist of an offer to subscribe
for a particular service. To be fair to all, the service may be offered on a
first come first serve basis which would be undermined by premature
disclosure. In the case of press releases, it will usually be fair to release
information to all the media simultaneously.
• The public authority may be under a duty to present a report in the first
instance to a particular individual, say in the case of a complaint, or to
make an announcement in a particular forum, say a report to Parliament
or its staff, before making it generally available.
• An announcement may be designed to prompt enquiries from the public
and may be expected to result in an increase in workloads, for instance a
press release or leaflet advertising a new service. An authority may
reasonably wish to ensure that it has made its own administrative
arrangements before the information is released to the public.
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There may be other good reasons for a public authority wishing to disclose
information according to its original timetable. However, it would be wrong to
refuse a request if to so would cause no obvious harm to the authority or third
parties. For instance, a public authority is planning to print a leaflet about the
services it currently provides. If a member of the public were to enquire about
one of those services, there would be no good reason to refuse the information.
b) Minutes of meetings
Minutes of meetings are likely to constitute information which is requested
reasonably frequently. Typically minutes are prepared in draft and agreed at the
following meeting before being published. While it is reasonable that an authority
will only wish to publish approved minutes, frequently it should recognise the
public interest in providing draft minutes to applicants who may either wish to
attend or have input into the subsequent meeting.
c) Partial
disclosures
A request may be for a piece of information included in a larger set of information
which the authority intends to publish. For instance, a regulator may publish
summaries of all the cases on which he has adjudicated in a year. If he receives
a request for information about one of those cases, it would often be wrong to
expect the applicant to wait for publication of the annual report, particularly if the
case was one of significant public interest. It would be unlikely that this disclosure
would cause administrative or other difficulties to the regulator or to disadvantage
any third party.
d) Early
publication
As noted above, one of the reasons why a public authority may wish to control
the date of release of information is to ensure that it is fair to all those who may
have an interest in the information. Where the public interest would be best
served by disclosure, this may lead the public authority to bring forward a
publication date.
This will be most likely to occur as a result of events which have taken place after
the publication date was set. For instance a public authority might be intending to
publish a report into a public health issue. Following the outbreak of a disease it
might decide that there is a strong public interest in early publication of the
information it had intended to publish at a later date. This decision may be
triggered by a request from, say, a journalist. Where information exists only in
draft, this may involve publication in a form other than that originally planned or,
depending upon the state of the draft, publishing part of the information.
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D) OVERLAP WITH OTHER EXEMPTIONS
The exemption in relation to information intended for future publication does not
depend upon the content of the information. The decision to publish has already
been made, albeit after possible amendments. The issue is the timing of
publication.
As a general rule, it may be better to claim the s.22 exemption in relation to
information which is relatively non-contentious but where there are sound
reasons for publishing according to the original timetable (see “The timing of
publication” – above) and one of the other exemptions in the Act where more
sensitive information, whose disclosure might lead to a specific harm, is involved.
For instance, so far as drafts of policy papers intended for publication, a central
government department may be able to rely on the exemption relating to the
formulation of government policy. Other public authorities may be able to argue
that disclosure would be prejudicial to the effective conduct of public affairs.
Some financial information, although destined for publication, may be withheld in
response to a request because for the time being disclosure might prejudice the
economy or the commercial interests of a third party. Public authorities refusing
requests are under a duty to explain their reasons for refusal. Where more
sensitive information is involved, it is likely to be more informative to point to one
of these other exemptions.
There may be other reasons for considering other exemptions. For instance, if
there is uncertainty as to whether information may in fact ultimately be published,
it will avoid possible dispute to claim another exemption if one is available.
Similarly, where the information is intended for future publication by another
public authority, it may be more certain to rely upon the exemption relating to
confidential information.
E) PRACTICAL
ISSUES
In practice it is likely to be relatively easy to determine whether or not it is
appropriate to rely upon the exemption. Public authorities may reduce the
number of requests for information which they receive and the number of times
upon which they may need to rely upon the exemption by providing the public
with a clear description of its planned publications, including a publication
timetable. This could be included as a class of information within the authority’s
own publication scheme.
It may also be helpful within publication schemes to indicate the likely date of
publication within the description of the class of information. For instance, many
public authorities include minutes of management board meetings as a class of
information within their publication schemes. It may be helpful to indicate that the
minutes will be published within a week, a month etc of the meetings.
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It may also assist if drafts of documents include intended publication dates and
an indication of whether any or all of the information could be released prior to
publication.
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Document Outline
