14 August 2023 - We have included the following new Further Reading resource:
- Keeping internal consultations on FOI requests timely and transparent - a short guide for public authorities
About this detailed guidance
This guidance discusses section 28 of FOIA (relations within the UK) in detail and is written for use by public authorities. Read it if you have questions not answered in the guide, or if you need a deeper understanding to help you apply this exemption in practice.
- What does the exemption say?
- How do we apply the exemption?
- How do we apply the neither confirm nor deny provisions?
- How do we consider the balance of the public interest test?
Section 28(1) provides an exemption for information if its disclosure would, or would be likely to, prejudice relations between two or more administrations in the UK.
Section 28(2) confirms that “administration” means the UK Government or the devolved administrations of Scotland, Wales and Northern Ireland.
The exemption can apply if disclosure of information prejudices relations between the UK government and a devolved administration, or if it prejudices relations between any of the devolved administrations themselves.
Section 28(3) provides an exemption from the duty to confirm or deny whether information is held, if doing so would, or would be likely to, prejudice the interests protected by section 28(1).
Both exemptions are subject to the public interest test.
Devolution is the transfer of certain powers from the UK Government to Scotland, Wales, and Northern Ireland. This process was introduced to decentralise government and give more powers to the three nations which, together with England, make up the UK.
Matters reserved to Westminster include the following and the UK government remains responsible for them:
- the constitution;
- international relations and defence;
- national security;
- nationality and immigration;
- nuclear energy; and
The various functions of the UK Government and the devolved administrations are defined in the Scotland Acts 1998, 2012 and 2016, the Government of Wales Acts 1998 and 2006, the Wales Act 2014 and 2017 and the Northern Ireland Act 1998 and 2009.
The UK government represents UK interests in matters that are not devolved to Scotland, Wales or Northern Ireland. The Office of the Secretary of State for Scotland, and Office of the Secretary of State for Wales and the Northern Ireland Office all form part of the UK Government. It is the responsibility of these departments to ensure that Scottish, Welsh and Northern Ireland interests are represented in Westminster and the UK Government’s responsibilities are fully and effectively represented in each of the nations.
Underpinning relations between the UK and the devolved administrations are the Memorandum of Understanding (MoU) and supplementary agreements.
In addition to the MoU, uniform arrangements known as overarching concordats exist for handling financial assistance to industry and international relations touching on the responsibilities of the devolved administrations. Other agreements (known as bi-lateral concordats) cover procedures, policy and matters of a more practical nature.
Neither the MoU nor the concordats are legally binding. They have been developed to support the statutory relationships and reflect the arrangements between the four administrations that they will work together on matters of mutual interest and co-operate on a range of issues.
Application of section 28 in FOIA to the devolved administrations
The Welsh Government and the Executive Committee of the Northern Ireland Assembly are public authorities subject to FOIA.
The Scottish Administration (the Scottish Government) is subject to separate legislation, the Freedom of Information (Scotland) Act 2002 (FOISA), and requests to it must be made under that legislation. FOISA is regulated by the Scottish Information Commissioner and not the Information Commissioner’s Office. Further information is available on the Scottish Information Commissioner’s website.
The purpose of the exemption
The purpose of the exemption in section 28 is to protect good relations between the different administrations within the UK.
There are two distinct circumstances in which you are likely to be able to apply the exemption, if:
- you have obtained or shared requested information between administrations; or
- information held internally by one administration could prejudice relations because:
- they do not want other administrations to see that information; or
- other administrations would not want that information released into the public domain.
You should remember that the exemption does not apply automatically just because disclosure of the requested information would breach the terms of the MoU or a concordat.
You can only withhold information on the basis of section 28(1) if its disclosure would, or would be likely to, prejudice relations between the administrations of the UK.
The test involves a number of steps:
- Is the harm one which the exemption in section 28(1) is designed to protect?
- Can you demonstrate a causal link between the disclosure and the harm? The prejudice must be real, actual or of substance. Prejudice under section 28(1) can be real and of substance if it makes relations between the two or more of the administrations more difficult, or calls for a particular damage limitation exercise. However, you do not necessarily have to demonstrate quantifiable loss or damage.
- What is the likelihood of the harm actually occurring (ie “would” it occur, or is it only “likely to” occur)?
Deciding whether the prejudice would occur or is only likely to occur is important. The more certain the prejudice, the greater weight it will carry when considering the public interest.
In this context the term “would prejudice” means that it has to be more probable than not that the prejudice would occur.
“Would be likely to prejudice” is a lower test; there must be a real and significant risk, even if the risk of prejudice occurring is less than 50 per cent.
Read our detailed guidance on the prejudice test for more information.
Information obtained from or shared with another administration
Shared information is information that one administration has obtained from another or is shared between any number of administrations.
If you rely on section 28 for shared information you should consider the following:
- was there a reasonable expectation that the information would remain confidential;
- is the information still sensitive at the time of the request; and
- what, if any, damage would result if the information were released?
In many cases you should maintain the confidentiality of shared information to encourage co-operation between the administrations. The administrations need to feel they can engage in free and frank exchanges and discussions without fear of adverse consequences, if such information is disclosed.
However, an expectation of confidentiality is not in itself sufficient to engage the exemption. You must consider all of the circumstances at the time of the request.
If you share information with another administration or public authority, you should make clear what restrictions are in place for how they use it.
Nevertheless, you should remember that as with any protective markings, any sensitivity markings will only be indicative. Their main purpose is to alert the recipient of the need to consult with the administration that originally provided the information.
If information you hold is subject to a request and you received that information from another administration you are advised to seek their views on the potential disclosure and any harm it may cause. You should take these views into account when deciding whether prejudice is likely to arise if you disclose the information, albeit it is your responsibility to decide whether to apply the exemption.
Decision notice FS50611149 concerned a request submitted to the Wales Office (now the Office of the Secretary of State for Wales) seeking correspondence between Wales Office Ministers and the Welsh Government Minister for Health and Social Care over a 11 month period. The Wales Office disclosed some parts of correspondence but sought to withhold the remainder on the basis of section 28(1).
In support of this position, the Wales Office argued that the withheld information contained open and honest views between UK Government and Welsh Government Ministers and disclosure of the information would be likely to prejudice their ability to write in such terms. It emphasised that parts of the correspondence discussed a range of sensitive areas where the two Governments have had fundamental disagreements. The Wales Office argued part of maintaining good relations between the administrations involved ensuring that the exchange of correspondence of this nature is based on mutual trust which flowed from confidentiality.
The ICO concluded that disclosure of the particular information that had been withheld, which contained critical comments on a contentious and devolved area, could mean that Ministers were more reluctant to openly express their views with each other in the future. In turn, the ICO accepted that this would be likely to prejudice the relations between the two administrations and that section 28(1) was engaged.
Internal information held by one administration
Internal information is information only held by one administration.
If you are considering relying on section 28 for internal information, you should decide whether you want other administrations to see the information. You also could consider whether other administrations would want the information in the public domain.
The following list, which is not exhaustive, provides examples of internal information that may give rise to prejudice between administrations if disclosed:
- Release of information concerning another administration’s spending plans or unannounced policy proposals.
- A thumbnail sketch of the strength and weaknesses of the individual members of an executive.
- The release of a report which is critical of another administration before that administration had the opportunity to consider and make representations and preparations before publication.
- Comments within the UK government on a devolved administration’s policy proposal or legislation.
- Information whose release could prejudice confidential and diplomatic negotiations.
- Sensitive information held by UK government departments on devolved matters which predate devolution but which concern the devolved administrations.
You may also need to consider whether relations between the administrations have changed following the UK’s exit from the European Union.
Decision notice FS50362603 concerned a request made to the Cabinet Office in 2010 for the minutes of the Cabinet Sub-Committee on devolution dating from 1997 and 1998.
The information recorded the considerations of the UK Government at the time the policy on devolution was being formulated and developed.
The Cabinet Office relied on section 28(1) to withhold some of the requested information. In support of this position it argued that disclosure of the information would shed light on difficult decisions that were taken when devolution was being formulated and developed. In turn this could exacerbate current disagreements between the administrations and could also create new disagreements.
The ICO concluded that the exemption was not engaged. In reaching this decision it concluded that the Cabinet Office’s argument was significantly weakened by the passage of time given that the request was received some 12 to 13 years after the discussions took place. The ICO also noted that the devolved administrations had been in place for a number of years and to a certain extent the outcome of the debates recorded within the information was already known. Therefore, although the ICO accepted that devolution remained a live issue at the time of the request, it was not persuaded that in the circumstances of this request that disclosure of the information would be likely to prejudice relations between the administrations.
Section 28(3) states that:
“The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).”
You can rely on section 28(3) to refuse to confirm or deny whether you hold requested information, if to do so would, or would be likely to, prejudice relations between the administrations.
For example, confirming whether or not you hold information could reveal whether you had considered a particularly sensitive issue.
Section 28 is a qualified exemption. This means that even if the requested information is exempt from disclosure, you must consider whether the public interest in maintaining the exemption outweighs the public interest in its disclosure.
FOIA does not list the factors that would favour disclosure. However, they may include:
- furthering the understanding of, and participation in the public debate of issues of the day. In this exemption, this might be participating in a debate about a decision due to be taken by an administration or in a debate about relations between administrations;
- promoting accountability and transparency in the spending of public money;
- helping individuals understand decisions made by public authorities which affect their lives;
- informing the public about measures, procedures, arrangements and associated discussions concerning public protection; and
- bringing to light information affecting public health and safety.
You must ensure that the public interest arguments in favour of maintaining an exemption relate specifically to that exemption and the particular factors relevant to that request. Section 28(1) is designed to protect relations between the different administrations in the UK. You should assess the public interest against the fact that the devolution settlement relies on an atmosphere of trust, co-operation, sharing of information and respect between the four administrations.
You must consider the relative weight of the arguments for and against disclosure given the circumstances of the particular request. These can be affected by:
- the likelihood and severity of any prejudice;
- the age of the information;
- how far the requested information will help public understanding; and
- whether similar information is already in the public domain.
Read our detailed guidance on the public interest test for more information.
Decision notice FS50796325 concerned a request submitted to the Scotland Office (now the Office of the Secretary of State for Scotland) for communications it had with other Whitehall departments about the confidence and supply arrangement between the UK Government and the DUP and any extra requests for funding for Scotland a result of this.
The Scotland Office relied on section 28(1) of FOIA to withhold some of the information on the basis that disclosure would be likely to prejudice relations between the UK and Scottish governments. The ICO accepted that the exemption was engaged.
In terms of the public interest test, the Scotland Office argued that it was essential that Ministers and officials in all four administrations are confident that they can communicate with one and another directly and candidly and that the confidentiality of their communications will be respected.
The complainant argued that the public interest favoured disclosure of the information for a number of reasons. These included economic ones as there has been significant discussion about the money involved in this deal, constitutional ones given current questions over the future relationship between Scotland and the rest of the UK, and because of significant questions over how decisions are made to allocate funds outside the Barnett process.
The ICO accepted that there was a public interest in disclosing the withheld information, in order to further inform the public about the government’s considerations of the funding implications of the agreement. Furthermore, the ICO agreed that there is a general public interest in the disclosure of information which would add to the public’s understanding of relations between the UK and Scottish governments, and specifically, discussions about the confidence and supply agreement.
However, the ICO noted that there was a significant public interest in ensuring that effective relations exist between the UK and the other administrations. It was also conscious that disclosure of the withheld information risked prejudicing not just the UK’s relations with the Scottish Government about this issue, but risked undermining the candour and confidentiality of communications between the two on other issues in the future. Given these wide ranging consequences, and fact that policy making in respect of this matter remained live, the ICO concluded that the public interest favoured maintaining the exemption contained at section 28(1) of FOIA.
Other exemptions which may be relevant to section 28 are:
- Section 35 (formulation and development of government policy) for example, the development of policy which would apply across all parts of the UK.
- Section 41 (information provided in confidence) as there is a link between this exemption and information provided in confidence from one administration to another.
Internal Consultation Resource - Keeping internal consultations on FOI requests timely and transparent.