Freedom of information: A guide for business - Herbert Smith Freehills

FOIA
provision Exemption Absolute/qualified Nearest equivalent EIR exemptions*
Section 40(2)
Information which constitutes
personal data of any person
other than applicant, where
disclosure would not be
permitted under the DPA 1998
Generally absolute
(ie where relates
to breach of
data protection
principles), though
qualified in certain
cases (rarely used
in practice)
Equivalent in exemption in
Regs. 12(3) and 13
Section 41
Information obtained by the
public authority from another
person and disclosure would
constitute an actionable breach
of confidentiality
Absolute
Disclosure would adversely affect the
confidentiality of commercial or industrial
information where such confidentiality is
provided by law to protect a legitimate
economic interest (Reg. 12(5) (e))
Possibly also exemption for disclosure
which would adversely affect the interests
of the person who provided the information
where that person has provided the
information voluntarily and on the basis
that disclosure would not be made and
consent withheld (Reg. 12(5) (f))
NB the exemptions in 12 (5) (e) and
(f) cannot be relied on where the
information relates to "emissions"
Section 42
Information covered by legal
professional privilege (ie legal
advice privilege or litigation
privilege)
Qualified
No exact equivalent, though can generally
rely on exemption where disclosure would
adversely affect the course of justice
(Reg. 12(5) (b)
Section 43(1)
Information constituting a trade
secret
Qualified
Disclosure would adversely affect the
confidentiality of commercial or industrial
information where such confidentiality is
provided by law to protect a legitimate
economic interest (Reg. 12(5) (e)). Note
that this exemption cannot apply where the
information relates to emissions.
Note also exemption from disclosure which
would adversely affect intellectual property
rights (Reg. 12(5) (c))
Section 43(2)
Disclosure would/would be likely
to prejudice commercial interests
of any person (including public
authority)
Qualified
Disclosure would adversely affect the
confidentiality of commercial or industrial
information where such confidentiality is
provided by law to protect a legitimate
economic interest (Reg. 12(5) (e)). This
exemption cannot apply where the
information relates to emissions.
Section 44
Disclosure is prohibited by/under
any enactment, is incompatible
with any EU obligation or would
constitute/be punishable as a
contempt of court
Absolute
None – note Reg. 5(6) which provides that
"Any enactment or rule of law that would
prevent the disclosure of information in
accordance with these Regulations shall
not apply".
* All EIR exemptions are qualified
A freedom of information guide for business 19