Withholding Information with a view to Future Publication: Recent ICO Guidance for Public Authorities
The Information Commissioner's Office (“ICO”) has published guidance for public bodies in England and Wales in relation to two exemptions to Freedom of Information (“FOI”) legislation which allow for the withholding of information in response to an FOI request. Section 22 of the Freedom of Information Act 2000 (“FOIA”) allows for, subject to certain requirements, a public authority to refuse disclosure of information in response to an FOI request if it is held with a view to its further publication, and section 22A FOIA similarly allows for certain research information to be withheld.
The ICO’s guidance helpfully provides further clarity on these exemptions which may be of assistance to public bodies, but equally indicates that it may be more difficult for public bodies to withhold information if there is no set date for the relevant publication.
Section 22 FOIA: Information intended for future publication
Section 22 FOIA provides an exemption for information which, at the time a public authority receives a request for such information:
(i) is held by the public authority;
(ii) is intended by the public authority to be published at some future date, whether that date is determined or not; and
(iii) can be reasonably withheld in all the circumstances until its planned publication.
In considering whether to withhold information under section 22, public authorities must consider if the public interest in maintaining the exemption is greater than the public interest in disclosing the requested information. Where the public interest is equally balanced, the authority must disclose the requested information. The timing of a disclosure is often the key element in this deliberation.
Unlike the Scottish equivalent legislation (Freedom of Information (Scotland) Act 2002) (“FOISA”), FOIA and the ICO’s guidance do not require a date to be fixed for publication in order to rely on the section 22 exemption. However, the ICO’s guidance indicates that where no date has been set or earmarked for future disclosure the public bodies will find it more difficult to justify withholding the information. The guidance suggests that a general intention to publish may not be sufficient and the public interest in releasing the information will often be stronger if the publication date is far in the future or not set at all.
Nonetheless, the ICO’s guidance does outline a number of scenarios where public authorities may still be able to apply the section 22 exemption without a fixed publication date, including where publication will take place once other actions have been completed or by reference to other related events, or where there is a draft publication schedule that hasn’t yet been finalised.
The intention to publish must also pre-date the request. When a public authority receives a request, it cannot attempt to give itself more time by deciding to publish the information in the future rather than provide it to the requestor within the statutory time limit for answering a request.
The ICO’s guidance confirms that “publication” can have a wide meaning and can cover the delivery of information to the general public via a number of means, including speech, physical inspection and picture form, in addition to the more standard print or online forms. The ICO has emphasised, however, that the intention must be for the information to be made available to the general public and not solely to a particular, restricted audience.
If draft documents or final reports have been circulated between various parties and any one of those parties intends to publish information contained in such documents, the ICO has confirmed that any of the public bodies holding the information could apply the section 22 exemption.
Section 22A FOIA: Research Information
The ICO guidance also touches on section 22A FOIA, which provides a mechanism for Universities and other public bodies to reject requests for information concerned with ongoing research projects they are engaged in. Whilst there is a degree of overlap between section 22 and section 22A, the latter does provide broader scope for public authorities to decline an FOI request in respect of a wide range of information relating to ongoing research.
Section 22A provides an exemption for information obtained from a programme of research, as long as:
• the programme is still under way;
• there is an intention to publish a report of the research; and
• disclosure of the information would or would be likely to prejudice the research programme, the interests of participants in the programme, or a public authority holding or intending to publish a report of the research.
It is not a requirement of the section 22A exemption for such a report to contain the information that has been requested, or for there to be an intention that this is the case. The intention to publish also does not need to be held by the public authority itself. Section 22A is also subject to the public interest test.
The public body must demonstrate that disclosure of the requested information prior to any envisaged publication would or would likely risk prejudice to the interest of an individual in the programme or to the authority holding the information. This is a wide exemption, which only specifies whose interests would need to be prejudiced by early disclosure, and not exactly what those “interests” are.
Best Practice
The Commissioner’s view is that it is good practice when applying either exemption in response to an FOI request to provide the requester with an anticipated date of publication. If the public body subsequently decides not to publish the information, it should inform the requester and ask if they wish to submit the request again. In addition, where an authority applies one of these exemptions, it should consider whether bringing forward the proposed publication date would better serve public interest.
Comment
While the ICO’s guidance is issued in relation to FOIA, it may be of use to Scottish public bodies subject to FOISA, which contains similar provisions, in addition to the briefing note which the Scottish Information Commissioner has published on this matter. Although section 27(1) FOISA contains a time restriction of twelve weeks for publication and so the ICO’s comments on date setting may not be relevant, its interpretations of “publication” and shared documents may be worth noting. Similarly its guidance relating to the disclosure of research information may be of use in relation to section 27(2) FOISA.
