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Policy Delivery knowledgebase
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FOI Policy: Line to Take
FoI or EIR
s50, reg 18
(1) Late claiming of exemptions & exceptions
(2) When to consider exemptions and exceptions not originally
claimed by a public authority
Line to Take:
(1) A public authority is able to raise a new exemption or exception either before the Commissioner or the First Tier Tribunal and
both must consider any such new claims.
(2) The Commissioner is under no positive duty to pro-actively consider exemptions or exceptions which have not been referred
to by a public authority but may do so if it seems appropriate to him in any particular case and after carefully taking into account
his obligations under the Human Rights Act 1998 and his jurisdiction for data protection in assessing the risks associated with
(1) Late Claiming of Exemptions and Exceptions
Public authorities have the right to claim any exemption (including s12 or s14) or exception for the first time
before the Commissioner or the Tribunal. This is subject only to the Tribunal’s case management powers. The
Commissioner does not have discretion as to whether or not to consider a late claim.
In the binding decision of the Upper Tribunal in the case of McInerney v IC and Department for Education
 UKUT 0047 (AAC), Jacobs J summarised the case law on this issue as follows (§§29-33):
• The Court of Appeal decision in Birkett v DEFRA  EWCA Civ 1606 is authority that late reliance on an
exception is permissible under the EIR.
• The decision of the UT in IC v Home Office  UKUT 17 (AAC) is authority that late reliance on an
exemption is permissible under FOIA subject to the FTT’s case management powers.
• There is no UT decision contrary to the decision in the Home Office case which is now generally accepted as
correct and the Court of Appeal’s decision in Birkett is treated as supporting the decision on FOIA.
• In so far as the UT in APPGER v IC & MOD  UKUT 153 (AAC) considered that the FTT had a discretion
to allow late reliance on an exemption, that is now inconsistent with the Court of Appeal’s decision in Birkett.
McInerney specifically concerned late claims of s12 and s14. Jacobs J accepted that his earlier decision in the
Home Office case did not address s12/14, but in McInerney he made it clear that the right to make a late claim
applied to these exemptions also; see §2 and §§34-41. We had previously taken the view that the APPGER case
was authority for saying that PAs do not have the right to make late claims of s12; in McInerney, Jacobs J said
that that reasoning is no longer valid (§33).
See LTT92 for further details on the specific issue of how to reconcile the requirements of section 10, the Fees
Regulations and the Upper Tribunal’s comments in relation to the operation of section 12 only being relevant to
(2) When to consider exemptions and exceptions not originally claimed by a public authority
In the case of Bowbrick, the Tribunal (now the First Tier Tribunal) commented that the Commissioner, although
not under a positive duty to do so, was entitled to consider exemptions not referred to by the public authority in
appropriate cases. For instance, it endorsed that the Commissioner could refer to section 40 in a decision notice
where the public authority had not sought to rely upon that exemption although the primary responsibility for
identifying personal data in need of protection still rests with the public authority. The Tribunal also stated that
a public authority would not be entitled to appeal against a decision notice on the basis that the Commissioner
ought to have considered a particular exemption which the public authority had not itself considered.
The Upper Tribunal in the Home Office and DEFRA cases also considered this issue and suggested that the
Commissioner’s role was to assess whether the information should or should not be disclosed. Therefore,
instead of determining whether the public authority was right to withhold the requested information under the
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exemptions/exceptions claimed, the Commissioner should consider exemptions not raised by the authority.
However, the Commissioner’s view is that this comment is obiter because it was not directed at the key issue in
the case (namely whether late claims should be allowed) and accordingly the Commissioner finds that this point
is not binding upon him. His position therefore remains that he can consider exemptions or exceptions not
raised by the authority but that he is under no duty to do so. Source of Line to Take
IT and CA
Bowbrick / City of Nottingham (28 September 2006)
DEFRA / IC & Simon Birkett (26 January 2011)
Home Office / IC (26 January 2011)
All Party Parliamentary Group on Extraordinary Rendition /
IC & MoD (18 April 2011)
Department for Education v the IC & Laura McInerny
McInerney v IC and Department for Education (29 January
Related Lines to Take
LTT92, LTT190, LTT193
EA2005/0006 (Bowbrick), GIA/1694/2010 (DEFRA), GIA/2098/2010 (Home Office), GIA/150-
152/2011 (APPGER), EA/2013/0270 (DfE), GIA 4267/2014 (McInerney)
PB / LB / GF / HD / CW Date:
20/10/2011. Amended 11/11/2014 re s14. Amended
Reference number: LTT21
11/05/2015 re s12 and s14
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