If the exemption you wish to apply is qualified, then you will need to do a public interest test, even if you know the exemption applies.
If you think that you may need to claim an exclusion from the duty to confirm or deny, then you will need to consider the public interest test for this duty. You will need to do this separately from the public interest test for the duty to provide information.
For ‘neither confirm nor deny’ cases (NCND) the public interest test involves weighing the public interest in confirming whether or not information is held against the public interest in refusing to do this. The public interest in maintaining the exclusion from the duty to confirm or deny would have to outweigh the public interest in confirming or denying that information is held, in order to justify an NCND response.
Similarly, when considering whether you should disclose information, you will need to weigh the public interest in disclosure against the public interest in maintaining the exemption. You must bear in mind that the principle behind the Act is to release information unless there is a good reason not to. To justify withholding information, the public interest in maintaining the exemption would have to outweigh the public interest in disclosure.
Note that the wording of the test refers to the public interest in maintaining the exemption (or exclusion). In other words, you cannot consider all the arguments for withholding the information (or refusing to confirm whether it is held), only those which are inherent in the exemption or exclusion ie relate directly to what it is designed to protect.
A government department is seeking to rely on section 35 to withhold information relating to the development of a controversial policy.
It argues that disclosure would:
a) have a negative impact on the ongoing discussions about this policy;
b) discourage ministers and civil servants from openly debating controversial or unpopular options when discussing similar policies in the future;
c) cause stress and upset to the people involved;
d) potentially lead to threats or harassment.
While a) and b) are legitimate public interest considerations for this exemption, c) and d) are not. Instead, they may suggest that section 38 (health and safety) or section 40 (data protection) might be relevant.
You can withhold information only if it is covered by one of the exemptions and, for qualified exemptions, the public interest in maintaining the exemption outweighs the public interest in disclosure. You must follow the steps in this order, so you cannot withhold information because you think it would be against the public interest without first identifying a specific exemption.
For further information, read our more detailed guidance: