FOI - Exemptions from Disclosure
The Information Act allows organisations to refuse access to information if its disclosure would be contrary to the public interest. Access can only be refused if the information qualifies under one of a series of exemptions set out in sections 44-58 of the Act.
This page gives an overview of the exemptions under the following headings:
- Two types of exemption
- Can part of a document be exempt while other parts are not?
- Requirements for exemption
- Does an organisation have to refuse access?
- Meaning of some terms
Two types of exemption
Exemptions fit into one of two categories.
- No public interest balancing test (sections 45-49C)
Executive Council, Cabinet, Territory economy
Security and law enforcement
Information exempt under corresponding FOI laws
Secrecy provisions
Preservation of system of justice - Public interest balancing test (sections 51-58)
Inter-governmental relations
Deliberative processes
Effective operations of public sector organisations
Health, safety, environment
Confidentiality obligations, confidential sources
Privacy and cultural information
Commercial and business information, research, examination papers
Financial and property interests of Territory or public sector organisation - No public interest test. If information satisfies the requirements of the exemption its disclosure is generally considered to be against the public interest. It will be exempt even if there are public interest considerations favouring disclosure.
- Public interest test. Even if the information satisfies the requirements of an exemption, it will only be exempt if, in the particular case, the public interest considerations against disclosure outweigh the considerations favouring disclosure. The public interest test is discussed on the Public interest test in exemptions page.
The two types of exemption require different approaches.
Can part of a document be exempt while other parts are not?
Even if some information in a document is exempt, access can still be granted to the other information. But an edited copy need not be provided to you if the part that is not exempt would contain no information of substance.
Requirements for exemption
Each exemption has one or more requirements that must be satisfied before the information can be exempt. Unless each requirement is satisfied, the information is not exempt. Some exemptions also have exceptions that exclude types of information from exemption under that provision.
Example 1
Information is exempt if "it was considered by an Executive body". The organisation must be satisfied that the information the applicant wants was "considered", and that the consideration was undertaken by an Executive body. The organisation must also be satisfied that none of the exceptions apply, for example, that it is not over 10 years old, and that it is not purely statistical, technical, scientific or factual material. If so, there being no public interest test, the information is exempt.
Example 2
Information may be exempt if "its disclosure would prejudice the administration, management or security of a prison". The organisation must be satisfied that there is the potential for prejudice to one of those 3 aspects of the operation of a prison, and that the disclosure of the information in question would give rise to that prejudice. There are no exceptions, so if those requirements are satisfied, the information may be exempt. But there is a public interest test, so the factors for and against disclosure must be identified.
There is clearly a public interest in avoiding prejudice to these aspects of prison operations, so satisfying the requirements of the exemption gives rise to a factor against disclosure. In some cases, the potential prejudice may be minor, in others it may go to the heart of prison security. The weight attributed to the factor will vary depending on the potential harm to the public interest in the particular case. If the organisation is satisfied that the circumstances give rise to factors favouring disclosure of the information in question, all factors for and against disclosure must be identified and the strength of those factors considered. If the factors against disclosure outweigh the factors favouring disclosure, the information will be exempt.
Does an organisation have to refuse access?
An organisation can refuse access to exempt information. But even if information is exempt the organisation does not have to refuse access. However, in most cases, the fact that information is exempt is a reflection of underlying factors that mean it is in the public interest not to disclose the information.
Meaning of some terms
| Term | Discussion |
|---|---|
| would will reasonably likely likely potential |
Various exemptions use different terms to describe the degree of expectation that is needed to satisfy a requirement of the exemption. This is distinct from the standard of proof that is required. While each term must be considered in the context in which it appears, some general comments can be made. Many exemptions require a finding that disclosure of the information "would prejudice" or "would disclose". Others use the words "is reasonably likely to". Within the deliberative processes exemption, tests for establishing factors that may go against disclosure are expressed in terms of "will" and "has the potential to". The level of the required expectation varies depending on the term used. The words "will" and "would" connote a level of expectation, bordering on, if not requiring, certainty. The words "reasonably likely" and "likely" do not require the same level of expectation but still require an expectation based on real and substantial grounds. Mere speculation or conjecture would not be enough1. It is doubtful whether there is any significant difference in the test required by these two terms. Words like "potential" and "might" require a lower level of expectation again. However, the expectation must still be rational and based on the available evidence. |
| substantial adverse effect |
Substantial means grave, weighty, significant or serious. The onus of establishing a substantial adverse effect is a heavy one.2 |
| disclose | To disclose is to reveal something that is not already apparent. It would not include granting access to information that is already publicly available or generally known. It is arguable whether it would apply in situations where the applicant already knows. |
Last Updated on
6 June, 2012