Freedom of Information: A Comparative Legal Survey - Federation of ...

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Most of the exceptions do include some form of harm test, apart from the ones relating to cabinet minutes
and one or two others, including one in favour of internal deliberations of public bodies. Personal information
requires an ‘unreasonable disclosure’ and many other exceptions are based on the standard that disclosure
could “reasonably be expected” to cause the harm listed. This is potentially a lower standard than applies
in some right to information laws and how strictly it is interpreted will be important for the successful
implementation of the Law. Many of the exceptions contain exceptions to exceptions, or circumstances that
override the exception. The RTI Law does not provide for certifi cates to be issued by ministers warranting
that certain records fall within the scope of an exception.
Section 34 contains a public interest override whereby information must be disclosed even where it
otherwise falls within the scope of an exception where the disclosure would reveal evidence of a substantial
breach of the law or an imminent and serious public safety, public health or environmental risk, and the
public interest in disclosure is greater than the likely harm to the protected interest. Although this is
limited in scope to the harms listed – breach of the law and so on – it does at least have the advantage of
being clearer than a more generic reference to the public interest.
Section 19(1) includes a severability clause, whereby any part of a record which is not covered by an
exception shall be disclosed. The Law does not include general historical time limits on confi dentiality but
such limits do apply to defence, international relations and the exception in favour of internal deliberations
of public bodies (see below).
The specifi c exceptions are as follows:
cabinet minutes and other records (sections 2(2) and 25(1));
the unreasonable disclosure of personal information or personal health records, unless the person
has consented, the person was informed when providing the information that it belonged to a class of
information that might be disclosed, the information is already available, or the information relates
to the functions of a public offi cial (sections 21 and 26);
information containing trade secrets, copyright, patents and the like, information the disclosure of
which is likely to cause harm to the interests or proper functioning of a public body, and information
supplied in confi dence the disclosure of which could reasonably be expected to put the third party
supplier at a commercial disadvantage, unless the information is already publicly available, the
third party has consented to disclosure, or the information contains the results of a product or
environmental test which reveals a serious public safety or health risk (section 27);
information the disclosure of which would constitute a breach of a legally owed confi dence or
information provided in confi dence the disclosure of which could reasonably be expected to prejudice
the future supply of similar information, contrary to the public interest, unless the information is
already publicly available or the third party has consented to disclosure (section 28);
information the disclosure of which could reasonably be expected to endanger the life or physical
safety of an individual or which is likely to prejudice the security of a building or other property, a
means of transport, or a method, plan, etc. for the protection of a witness, public safety or property
(section 29);
information the disclosure of which would deprive a person of a fair trial, could reasonably be expected
to prejudice the effectiveness of methods for or the actual prevention, detection or investigation of a
breach of the law or the prosecution of an offender, or result in a miscarriage of justice, or is likely
to reveal a confi dential source of information, result in the intimidation of a witness or facilitate
the commission of an offence, but information about general conditions of detention may not be
withheld on these grounds (section 30);
information which is privileged from production in legal proceedings unless the person entitled to
the privilege has waived it (section 31);