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

the RTI Law provides that nothing contained within it shall be deemed to limit the powers of a public body
to disclose information (section 78). Thus, like most right to information laws, it is not in any way a secrecy
law, this interest already being more than adequately catered for by the Offi cial Secrets Act and other
secrecy legislation.
Some of the exceptions are subject to a harm test but the majority are not, making them class exceptions.
A common formulation of the harm test, for those exceptions which include one, is “would, or would be
likely to, prejudice” the protected interest, a fairly strong formulation. In a few cases – such as legally
privileged information – the exceptions effectively incorporate an internal harm test.
Certifi cates are envisaged in relation to the exceptions in favour of security bodies (section 23), national
security (section 24) and parliamentary privilege (section 34), as well as in relation to the public interest
override (see below). Where a minister issues a certifi cate to the effect that information falls within the
scope of one of these exceptions, it shall “be conclusive evidence of that fact”, subject to different levels of
review by the Information Tribunal (see below) (section 60).
The Law does provide for a public interest override, albeit in negative terms, providing that the obligation to
disclose does not apply where, “in all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information” (section 2(2)(b)). This is a good test,
requiring the grounds for exception to outweigh those in favour of disclosure. It is, however, undermined
in two key ways. First, section 2(3) provides a long list of exceptions which are “absolute”, in the sense that
the public interest override does not apply to them. These include information accessible by other means
(section 21), information relating to security bodies (section 23), court records (section 32), parliamentary
privilege (section 34), the conduct of public affairs in relation to both houses of parliament (section 36),
most personal information (section 40), information provided in confi dence (section 41), and information
the disclosure of which is prohibited by any other law or European Community obligation (section 44). Most
of these are themselves class exceptions in the sense that they do not require a risk of harm.
The exceptions to the public interest override are wide but even more signifi cant is the power to defeat the
public interest override provided for in section 53. This allows the “accountable person” at any of the public
bodies covered by this section, normally a minister, within twenty days of a decision by the Commissioner
that information should be disclosed in the public interest, to sign a certifi cate that, “he has on reasonable
grounds formed the opinion that, in respect of the request or requests concerned, there was no failure”
to comply with the law. The effect of such a certifi cate is effectively to void the Commissioner’s decision
regarding the public interest override. This power is granted to all government departments, the National
Assembly of Wales and any other public body so designated by the Secretary of State. In practice, this
substantially undermines the enforcement powers of the Commissioner in relation to the public interest
override.
The RTI Law does not include a specifi c provision on severability. However, the provisions of the Law apply
to information, not documents, so that severability is implicit. In other words, the exceptions only extend
to the information they describe, not documents containing that information, so that any information not
covered by an exception must be disclosed.
The Law contains detailed provisions relating to historical records, defi ned for the most part as records
which are more than 30 years old, although some records are protected for longer and others are not
subject to any historical disclosure. A number of the exceptions no longer apply after the historical release
date, including those protecting relations within the United Kingdom (section 28), court information (section
32), those protecting internal government processes (sections 35 and 36) and commercially confi dential
information (section 43). A consultation on reducing the 30-year limit was announced on 25 October
2007. 299
There are three general exceptions, as well as some twenty specifi c ones. The three general exceptions
are for vexatious or repeated requests (section 14), information which is already reasonably accessible to
the applicant, even though this involves payment (section 21), and information intended to be published,
as long as it is reasonable not to disclose it pursuant to the request, even though no date of publication
has been set (section 22). This latter is problematical inasmuch as it could be abused to delay disclosure
beyond the normal timelines for responding to requests.
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