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New guidance for public bodies on FOI requests for information they intend to publish in future

Public bodies will find it harder to justify decisions to withhold information requested under freedom of information (FOI) laws on the basis that they intend to publish the material in future where no date has been set for that publication, according to newly issued guidance.08 Jan 2016

The Information Commissioner's Office (ICO) has published guidelines for public bodies on two exceptions that apply to FOI rules. Those rules generally require public bodies to disclose information they hold when requested to do so.

FOI laws allow public bodies to withhold information when they intend to publish it in future, but bodies must carry out a public interest test to determine whether, where that exception to disclosure applies, there is nevertheless an obligation to disclose that information.

The ICO's guidance (22-page / 347KB PDF) said that public bodies do not need to have set a date for publication of the information they hold for the section 22 exception to apply. However, it said that where no date has been earmarked for future disclosure the bodies will find it harder to justify withholding the information.

"The public interest in releasing the information will often be stronger if the publication date is far in the future or where it isn’t set," the guidance said.

The ICO said that public bodies cannot decide that they intend to publish information in the future at the point that they receive a request for information in an attempt to rely on the section 22 disclosure exception.

"The intention to publish must pre-date the request," the guidance said. "This means that a public authority cannot, when it receives a request, attempt to give itself more time to provide the information by deciding to publish it in the future rather than provide it within the statutory time limit for answering a request."

In addition, public bodies cannot cite their "general intention" to future publish some of the information they have been asked to disclose when relying on the section 22 exception, the ICO said.

"It is not enough for the public authority to note that it will identify some, but not all, of the information within the scope of the request for future publication," the ICO said. "The information that the public authority intends to be published must be the specific information the applicant has requested. If, in the course of preparing information for publication, some information is discarded or rejected, the exemption under section 22 will not cover that rejected material. Clearly, at the time the decision is made to discard that material, the public authority no longer holds the information with a view to its publication."

The ICO's guidance also said that the section 22 exception can be applied to cases where public bodies intend to make the requested information available to the general public in future through speech.

"The term ‘publication’ requires the information to be made available to the public," the ICO said. "It is not sufficient if a public authority or another person only intends to make the information available to a particular, restricted audience."

"‘Publication’ is not confined to making information available in print or online. The term is very broad and can include the action of making information generally known or available; for example: by physical inspection; in some circumstances, through speech; in picture form, if there is an intention to make the picture available through public display; and via notes made in preparation for a speech – if there is an intention to broadcast the speech publicly. The important issue to consider is whether there is an intention to make the information available to the general public," it said.

The ICO's new guidance document also sets out how separate FOI rules, which can permit universities and other public bodies to reject requests for the disclosure of information concerned with research projects they are engaged with, should be applied.