The public interest test

The Court of Appeal issued a judgement in November 2023 which decided that public authorities may aggregate public interest factors for and against disclosure if the public interest in maintaining one exemption is not sufficient on its own to outweigh the public interest in disclosure. This applies only when multiple qualified exemptions are engaged by the same single piece of information. The Court recognised that aggregation will not always be feasible or appropriate. The Information Commissioner disagrees with the outcome of this decision and has requested permission to appeal it to the Supreme Court.

We are not planning on updating this guidance until we have received the outcome of our application for permission to appeal.

About this detailed guidance

This guidance discusses the public interest test (PIT) under the Freedom of Information Act (FOIA) in detail and is written for use by public authorities. Read it if you require guidance to help you carry out the public interest test in practice.

In detail

What is the PIT?
What does FOIA say?
How do we define what is in the public interest?
How does this differ to what is of interest to the public?
Are private interests relevant to the PIT?
When do we consider the PIT?
What are the relevant PIT arguments in favour of maintaining the exemption?
What are the relevant PIT arguments in favour of disclosure?
What factors are irrelevant?
Are there any other means of scrutiny?
What about the interests of people in other countries?
How do we attach weight to the PIT arguments we have identified?
How do we conduct the balancing exercise?
How do we approach the PIT for NCND exemptions?
How do we approach PIT under the Environmental Information Regulations?

What is the PIT?

The exemptions in Part II of the Freedom of Information Act (FOIA) are “absolute” or “qualified”. If an absolute exemption applies, you do not have to release the information. If the exemption is qualified, you must weigh the public interest in maintaining the exemption against the public interest in disclosure. This is the public interest test.

You can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure.

The public interest here means the public good, it is not:

what is of interest to the public; or
the private interests of the requester (unless those private interests reflect what is the general public good, eg holding public authorities to account).

Public interest arguments for maintaining the exemption must relate specifically to that exemption. For example, where the exemption is about prejudice to a particular interest there is an inherent public interest in avoiding that prejudice. However, there is not necessarily an inherent public interest where the exemption protects a particular class of information.

There will always be a general public interest in transparency. There may also be a public interest in transparency about the issue the information relates to. You should consider any public interests that would be served by disclosing the information.

If there is a plausible suspicion of wrongdoing, this may create a public interest in disclosure. And even where this is not the case, there is a public interest in releasing information to provide a full picture.

Arguments based on the requester’s identity or motives are generally irrelevant. Arguments that the information may be misunderstood if it were released usually carry little weight.

The fact that other methods of scrutiny are available does not weaken the public interest in disclosure. Where other means of scrutiny have been used, apart from FOIA, this may however weaken the public interest in disclosure.

There is a public interest in promoting transparency about the UK government and public authorities, although requesters do not have to be UK nationals or residents.

You must consider the relative weight of the arguments for and against disclosure. This 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.

Where a qualified exemption applies and you do not wish to confirm nor deny that you hold the requested information, the decision to give a “neither confirm nor deny” response is itself subject to the public interest test.

You must consider the balance of public interest in all the circumstances of the request.

What does FOIA say?

FOIA gives a right of access to information that you hold, but it also contains possible exemptions from that right, which are listed in Part II. Some of these exemptions require you to consider the balance of public interest in deciding whether to withhold the information. These are known as “qualified” exemptions. Others do not; these are known as “absolute” exemptions. The absolute exemptions are listed in section 2(3); the exemptions in Part II that are not listed in that section are qualified and therefore require you to carry out a public interest test.

The following diagram shows the difference in the way that absolute and qualified exemptions are handled:

As the diagram indicates, when you wish to withhold information under a qualified exemption, you must carry out a two-stage process. Firstly, you must decide that the exemption is engaged (ie the exemption applies to the requested information). Then you must carry out the public interest test. This means you must decide whether the public interest is better served by maintaining the exemption (and hence withholding the information) or by disclosing the information.

When you have carried out the public interest test, you can only refuse to confirm or deny whether you hold information or withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosing it. If the public interest is equal on both sides, then you must release the information. If the public interest in disclosure is greater than the public interest in maintaining the exemption, then you must also release the information.

How do we define what is in the public interest?

To carry out the public interest test, it is necessary to understand what “the public interest” means in the context of FOIA.

The public interest can cover a wide range of values and principles relating to the public good, or what is in the best interests of society. Public interest can take many forms. For example, there is a public interest in:

transparency and accountability, to promote public understanding and to safeguard democratic processes,
good decision-making by public bodies,
upholding standards of integrity,
ensuring justice and fair treatment for all,
securing the best use of public resources, and
ensuring fair commercial competition in a mixed economy.

However, these examples of the public interest do not automatically mean that you should disclose or withhold information. For example, an informed and involved public helps to promote good decision-making by public bodies. But those bodies may also need space and time in which to fully consider their policy options, to enable them to reach an impartial and appropriate decision, away from public interference. Revealing information about wrongdoing may help the course of justice, but investigations into wrongdoing may need confidentiality to be effective. This suggests that in each case, the public interest test involves identifying the appropriate public interests and assessing the extent to which they are served by disclosure or by maintaining an exemption.

How does this differ to what is of interest to the public?

The public interest is not necessarily the same as what interests the public. The fact that a topic is discussed in the media does not automatically mean that there is a public interest in disclosing the information about it that has been requested.

Example

In Guardian Newspapers Ltd and Heather Brooke v the Information Commissioner and the British Broadcasting Corporation EA/2006/0011 & 0013 8 January 2007, the Information Tribunal said at paragraph 34:

“Mr Wells also exhibited to his statement a long list of press articles relating to the affair. Lord Wilberforce said in British Steel Corp v Granada Television Ltd [1981] AC 1096 at 1168: “There is a wide difference between what is interesting to the public and what it is in the public interest to make known”. We did not find that the list of articles assisted us, since in the selection no distinction was made between matters which were in the interests of the public to know and matters which were merely interesting to the public (ie, which the public would like to know about, and which sell newspapers, but which under s 2(2) are not relevant).”

Media coverage of an issue may indicate that there is a public interest at stake, but it is not proof of the fact.

Are private interests relevant to the PIT?

FOIA section 2(2) refers to the public interest. Furthermore, disclosures of information under FOIA are in effect to the world at large and not just to the individual requester. So the requester’s private interests are not the same as the public interest and what may serve those private interests does not necessarily serve a wider public interest.

Example

The case of Grace Szucs v the Information Commissioner EA/2011/0072 16 August 2011 concerned a request from Mrs Szucs to the Intellectual Property Office (IPO) for the legal advice they had received about how to deal with a previous request that Mrs Szucs’ husband had submitted. Mr Szucs was involved in a dispute with the IPO about how it had handled a complaint from him. In response to Mrs Szucs’ request, the IPO withheld the legal advice under FOIA section 42(1).

In carrying out the public interest test, the First-tier Tribunal distinguished between private interests and what is in the public interest. They said at paragraph 54:

“The disclosure of the disputed information is not necessary for the public to obtain information about the IPO. The fact the legal advice the IPO received in relation to the request for information made by Mr Szucs in 2005 may be of interest to Mrs Szucs, her husband, their associates and perhaps a slighter wider section of the public, but it does not follow that its disclosure is in the public interest.”

The case of Maurizi v The Information Commissioner & The Crown Prosecution Service (Interested Party: Foreign & Commonwealth Office) [2019] UKUT 262 (AAC) is further authority that you should not take private interests into account. In particular, you should give minimal weighting to the public interest in an individual seeking information about themselves. This is because other mechanisms exist for receiving this information under the Data Protection Act 2018.

Example

In Maurizi, the Upper Tribunal found at paragraph 202-203:

“I am sure that there is, in a general sense, a public interest in not depriving an individual of access to information relating to himself or, at least, promoting such access. But that does not require the interest is to be recognised in a FOIA NCND public interest balancing exercise. Separate legislation confers rights on individuals to access information about themselves. Broadly speaking, FOIA cannot be used by an individual as a means of obtaining personal information about himself; the individual generally needs to rely on his rights under the Data Protection Act 2018 (see section 40(1), FOIA).

In my judgment, the public interest in an individual seeing information about himself is served by the existence of separate legislation that confers specific rights for that purpose. It is not a factor requiring recognition in a NCND public interest balancing exercise which will connect to a request made by someone other than the subject of the information. I fail to see how a requester’s use of FOIA to obtain personal information for and about another person could rank as a relevant public interest factor favouring disclosure or, even if it did, how it could attract more than a minimal weighting. Refusing under FOIA to communicate information to an individual so that s/he can then communicate the information to the subject of the information is not, to my mind, a matter of public interest or concern. This is for the simple reason that what the public interest or concern is really directed towards is the information subject’s rights of access and these are provided for in separate legislation.”

When do we consider the PIT?

In carrying out the public interest test, you should consider the circumstances at the time you respond to the request in accordance with statutory timeframes for compliance. That is, at the 20 working days limit. If the request is particularly complex, section 10(3) allows you to extend the time you need for public interest considerations “until such a time as is reasonable in the circumstances”. This is known as the “public interest extension”. The ICO takes the view that you should not extend the time to consider the public interest more than a further 20 working days.

This means that – if you are late in issuing your response – you still need to conduct the public interest test by reference to the time at which you should have responded.

Example

In Montague v Information Commissioner (‘IC’) and the Department of International Trade (‘DiT’) [2022] UKUT 104 (AAC), a three-judge panel of the Upper Tribunal decided that the public interest balance must be assessed on the basis of how matters stood at the time of an authority’s decision on a request. This is the time when an authority is required to respond in accordance with the requirements and statutory timeframes in Part I of FOIA.

In this case, the applicant had requested information from the DiT about the trade working groups (‘TWGs’) established with a number of foreign countries ahead of the UK’s exit from the European Union.

The DiT disclosed some information but withheld most of it by relying on a number of qualified exemptions.

The DiT maintained its position following an internal review requested by the applicant. During the Commissioner’s investigation, the authority made further disclosures and issued a ‘revised’ refusal notice.

The Upper Tribunal decided that:

disclosures made by an authority after its initial decision on a request cannot be taken into account for the purpose of weighing the public interest in disclosure of any remaining information at a later stage;
a public authority’s decision on a request does not include any later decisions made on review after issuing the original decision.

On the balance of competing public interests, the Upper Tribunal concluded:

“The public authority is not to be judged on the balance of the competing public interests on how matters stand other than at the time of the decision on the request which it is has been obliged by Part I of FOIA to make. [para. 86]

“We therefore conclude that the FTT erred in law in its decision (…) in not confining itself to assessing the balance of the competing public interests for and against disclosure on the basis of matters as they were at the date of DIT’s (initial) refusal decision” [para. 87].

The Upper Tribunal’s decision in Montague supersedes the decision in APPGER v ICO and Foreign and Commonwealth Office (UKUT 0377 (ACC) (2 July 2015) which was previously considered as the relevant authority on the time at which to assess the balance of the public interest.

The Montague decision means that – if you are offering an internal review – you cannot reassess the balance of competing public interests at this stage. Rather, you need to look back at your decision to establish if – at that time – you dealt appropriately with the request, including the balancing of the public interest.

The decision also means that the ICO will take a similar approach when investigating complaints under section 50 of FOIA. That is, the Information Commissioner will assess how you carried out the public interest test by reference to the time of your decision which will not include the time of the internal review, if you conducted one.

However, it is sometimes possible that – during the Commissioner’s investigation or at tribunal – new facts and evidence emerge since the time you made your decision on a request. If this happens, the Information Commissioner can take into account the new evidence in so far as this can inform the grounds of exemptions you rely on.

Example

In R (Evans) v HM Attorney General [2015] UKSC 21, [2015] 1 AC 1787, the Supreme Court said:

“(…) although the question whether to uphold or overturn…a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the individual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal.” [para. 73].

In the APPGER decision, the Upper Tribunal interpreted this as meaning that the FtT was entitled to take into account evidence post-dating the authority’s decision, finding that “there is nothing unusual about a decision-maker taking account of later evidence to inform a historical position” [para. 53]

In Maurizi, the Upper Tribunal decided that this interpretation was correct [para. 181 – 182].

Where events after the time of your decision have changed the balance of the public interest test in such a way that disclosure would be inappropriate or undesirable, the ICO has discretion to decide what we order you to do.

Example

This approach was confirmed by the Upper Tribunal in Information Commissioner v HMRC & Gaskell (GIA/3016/2010 / [2011] UKUT 296(AAC), 20 July 2011)

Amongst other matters, the Commissioner had appealed to the Upper Tribunal against the First Tier Tribunal’s finding that he had no discretion when deciding what steps to order in a decision notice. The Upper Tribunal decided that the Commissioner does have discretion as to what steps to order, if any; he is not obliged to order steps in every case.

“In conclusion, I agree with both counsel that the requirement under section 50(4) that the decision notice should specify the steps which must be taken by the public authority does not amount to a mandatory obligation on the Commissioner to require steps to be taken…… As a matter of law the mandatory element of section 50(4) is that, if the Commissioner considers that the public authority ought to take any steps to comply with those statutory requirements, then he must specify them in the decision notice, along with the defined period within which they must be undertaken.”

In carrying out the public interest test, you should consider the arguments in favour of disclosing the information and those in favour of maintaining the exemption. You should try to do this objectively, recognising that there are always arguments to be made on both sides. It may be helpful to draw up a list showing the arguments you are considering on both sides. This will help when you assess the relative weight of the arguments.

What are the relevant PIT arguments in favour of maintaining the exemption?

FOIA provides a right of access to information public authorities hold. The exemptions from that right listed in Part II FOIA aim to protect particular, specified interests. So, the public interest arguments in favour of maintaining an exemption must relate specifically to that exemption.

Example

In Christopher Martin Hogan and Oxford City Council v Information Commissioner EA/2005/0026 and 0030 17 October 2006, the Information Tribunal said at paragraph 59:

“In considering factors that mitigate against disclosure, the focus should be upon the public interests expressed explicitly or implicitly in the particular exemption provision at issue.”

Arguments that relate to other exemptions are irrelevant. For example, if you want to apply section 31(1)(a), relating to the prevention or detection of crime, the public interest arguments you put forward for maintaining the exemption must relate specifically to the need to avoid prejudicing crime prevention or detection. They must not relate to, for example, endangering health and safety, which is dealt with in section 38.

Class-based and prejudice-based exemptions

When considering the public interest test, there is a difference between “prejudice-based” and “class-based” exemptions. These two terms are explained in our separate guidance document on the prejudice test. Briefly, class-based exemptions protect information because it is of a particular type (eg information held for the purposes of an investigation). Prejudice-based exemptions protect information where its disclosure would or would be likely to harm a particular interest (eg the prevention or detection of crime).

There is a public interest inherent in prejudice-based exemptions, to avoid the harm specified in that exemption, such as prejudicing crime prevention or endangering health and safety. The fact that a prejudice-based exemption is engaged means that there is automatically some public interest in maintaining it. You should take this into account in the public interest test. The same is not necessarily true if the exemption is class-based.

Example

In Department for Education and Skills v Information Commissioner and the Evening Standard EA/2006/0006 19 February 2007, the DfES had argued (paragraph 45) that Parliament had accepted that any disclosure of information covered by a class-based exemption caused some damage to the public interest. (In this case, section 35(1)(a), the formulation and development of government policy). The Tribunal rejected this argument They said at paragraph 63:

“In our judgement, inclusion within such a class of information simply indicates the need and the right of the public authority to examine the question of the balance of public interests when a request under s.1 is received. Often such examination will be very brief because disclosure poses no possible threat to good government.”

In other words, the fact that the information fell within the exemption was simply a trigger to consider the public interest. It did not imply that there was a public interest in not disclosing it.

This approach was approved by the High Court in the case of Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) (11 April 2008) at paragraph 79.

As a general rule there is no inherent public interest in class-based exemptions. However, there is an inherent public interest in section 42, which exempts legally privileged information. This is because of the importance of the principle of legal privilege; disclosing any legally privileged information threatens that principle. For further discussion of this point, see our separate guidance on the exemption for legal professional privilege.

Class-based exemptions are engaged because the information is of a particular type. If you can also show that disclosure of the information would or would be likely to have a prejudicial effect, then there is a public interesting in avoiding that prejudice. The prejudicial effect must relate back to what the exemption is designed to protect.

Blanket rulings

FOIA Section 2(1)(b) and (2)(b) requires you to consider whether “in all the circumstances of the case”, the public interest in maintaining the exemption outweighs the public interest in disclosure. This means that although you may have a general approach to releasing certain types of information, and this may be helpful from an administrative point of view, this should not prevent you from considering the balance of public interest in the individual circumstances of each request.

Example

In Hogan, the Information Tribunal said at paragraph 57:

“The public authority may well have a general policy that the public interest is likely to be in favour of maintaining the exemption in respect of a specific type of information. However such a policy must not be inflexibly applied and the authority must always be willing to consider whether the circumstances of the case justify a departure from the policy.”

Rather than making blanket rulings, you should balance the competing public interest arguments, after a contents based assessment of the withheld information. You should follow the approach endorsed by the Upper Tribunal in Department of Health v IC & Lewis [2015] UKUT 159 (AAC).

What are the relevant PIT arguments in favour of disclosure?

General public interest in transparency

The public interest arguments in favour of maintaining an exemption must relate specifically to that exemption, but this is not necessarily the case when considering the arguments in favour of disclosure.

Example

The Information Tribunal in Hogan made this point at paragraph 60:

“While the public interest considerations against disclosure are narrowly conceived, the public interest considerations in favour of disclosure are broad-ranging and operate at different levels of abstraction from the subject matter of the exemption.”

There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process. FOIA is a means of helping to meet that public interest, so you must always give it some weight in the public interest test.

Public interest in the issue

As well as the general public interest in transparency, which is always an argument for disclosure, there may also be a legitimate public interest in the subject the information relates to. For example, where you apply the exemption at section 35(1)(a) FOIA, if a particular policy decision has a widespread or significant impact on the public, there is a public interest in furthering debate on the issue. For example, changes to the education system. So, this can represent an additional public interest argument for disclosure. If you are taking a major policy decision, there may also be a contrary argument that you should not disclose information because of the need for a safe space in which to formulate and develop policy.

Public interest in the information

In addition to the general public interest in transparency and accountability, and any public interest arising from the issue concerned, there may be a specific public interest in disclosing the information in question. This of course depends on the circumstances of the case.

The following case is an example of where there is a specific public interest in transparency, to help people to understand their legal obligations.

Example

Simon Philip Kalman v Information Commissioner and Department for Transport EA/2009/0111 6 July 2010 concerned a request for Directions issued under the Aviation Security Act 1982 (ASA) relating to security-screening passengers at airports. The Department for Transport withheld the Directions under FOIA section 24(1), relating to national security. Section 24(1) is a qualified, prejudice-based exemption.

The Appellant argued that the effect of the Directions was that refusing to submit to a search could potentially constitute a criminal offence. Furthermore, the ASA provides a bar to civil or criminal claims arising from anything done or not done in compliance with a Direction. If they were not disclosed the Directions could be described as a ‘secret law’; people were entitled to know the source of their legal obligations and any legal restrictions on their right to make a claim.

The First-tier Tribunal accepted the ‘secret law’ argument as a public interest factor in favour of disclosure. They said at paragraph 66:

“The public have a legitimate interest therefore in knowing whether an action complained of arises out of a Direction or not… it is in the public interest for parties to know, if they have a complaint, where they stand in relation to the powers exercised by airport security staff before bringing legal actions”.

Suspicion of wrongdoing

A further example of a potential public interest in transparency is where there is a suspicion of wrongdoing. For example, a requester may allege that a public authority has committed some form of wrongdoing, and that the information requested would shed light on this. For you to consider this as a factor in the public interest test, the following must apply:

disclosure must serve the wider public interest rather than the private interests of the requester (see private interests above); and
the suspicion of wrongdoing must amount to more than a mere allegation; there must be a plausible basis for the suspicion, even if it is not actually proven.

A number of sources may suggest whether a plausible basis exists:

The facts may suggest that the basis for an authority’s actions is unclear or open to question. The case of Mersey Tunnel Users’ Association v Information Commissioner and Merseytravel EA/2007/0052 15 February 2008, is an example of this and is discussed below. The Information Tribunal in that case said at paragraph 46 “legitimate and serious questions can readily be asked about both the power to make the payments and the obligation to do so”.
If there has been an independent investigation, for example by an Ombudsman or auditors, the outcome of this may indicate whether or not there is any substance in an allegation of wrongdoing.
The content of the information is important in making this assessment. It may refute the suspicion, in which case there may be some public interest in disclosing the information in order to clear up misconceptions; or, it may indicate that the suspicion is justified (a so-called ‘smoking gun’), in which case there is an even stronger public interest in disclosure.
Evidence of public concern about the issue could also be a factor for disclosure (see example below).

Example

In House of Commons v Information Commissioner and Leapman, Brooke, and Thomas EA/2007/0060 26 February 2008, the Information Tribunal at paragraph 49 found “as a fact” that there was “a long-standing lack of public confidence in the system of MPs’ allowances” and “the extent of information published is not sufficient to enable the public to know how the money is spent”. This clear evidence of public concern gave a plausible basis for the suspicion which created an additional public interest in disclosure.

If there is evidence of public concern but those concerns do not have an objective basis, there can still be a public interest argument for disclosure. This is if it would show that the concerns are unjustified and would help restore confidence in the public authority.

The ICO cannot assess whether there has been maladministration or other wrongdoing. In dealing with a complaint, we consider the types of evidence listed above to assess whether the suspicion of wrongdoing creates a public interest in disclosure, not to decide whether there has been wrongdoing.

Presenting a ‘full picture’

Even if wrongdoing is not an issue, there is a public interest in fully understanding the reasons for your decisions. This will remove any suspicion of manipulating the facts or ‘spin’. For example, this may well be a public interest argument for disclosing advice given to decision-makers. The fact that the advice and the reasons for the decision may be complex does not lessen the public interest in disclosing it and may strengthen it. Similarly, the information does not have to give a consistent or coherent picture for disclosure to help public understanding. There is always an argument for presenting the full picture and allowing people to reach their own view. There is also a public interest in the public knowing if you have based an important decision on limited information.

Example

Cabinet Office and Christopher Lamb v Information Commissioner EA/2008/0024 and 0029 27 January 2009, concerned a request for the minutes of Cabinet meetings at which the Attorney General’s advice on the Iraq war was discussed. The Information Tribunal said at paragraph 82:

“…the majority considers that the value of disclosure lies in the opportunity it provides for the public to make up its own mind on the effectiveness of the decision-making process in context”.

The public interest in disclosure may increase if information that is already in the public domain (rather than the requested information) is:

misleading or misrepresents the true position; or
does not reveal the full picture.

For example, there may be a public interest in disclosing the full advice if you have disclosed part of some legal advice, leading to misrepresentation or a misleading picture being presented to the public.

What factors are irrelevant?

There are a number of arguments which you may put forward in the public interest test, that we consider are unlikely to be relevant. This is supported by the following example.

Example

The Information Tribunal in Hogan at paragraph 61 said:

“While FOIA requires that all the circumstances of the case be considered, it is also implicitly recognised that certain factors are not relevant for weighing in the balance.

First, and most importantly, the identity and, or, the motive of the applicant is irrelevant…

Second, the ‘public interest’ test is concerned only with public interests, not private interests.

Third, information may not be withheld on the basis that it could be misunderstood, or is considered too technical or complex.”

Our view on these points are as follows:

Identity of the requester

The requester’s identity or their motives in seeking the information are not relevant to the public interest test. FOIA is often said to be “applicant and motive blind”. This is because a disclosure under FOIA is in effect a disclosure to the world. The public interest issues that come into play when a qualified exemption is engaged are about the effect of making the information public, not the effect of giving it to a particular requester. This does not mean that you should not consider the requester’s public interest arguments.

Private interests of the requester

The requester’s private interests are not in themselves relevant to the public interest test. For example, a requester may have a grievance they are pursuing and may think the information they want will help them. This in itself is not a relevant factor. There is only a public interest argument if you can show that there is a wider public interest that would be served by disclosing that information.

Example

In Maurizi the Upper Tribunal explained at paragraph 35 that:

“The FtT agreed that Mr Assange had a “strong personal interest” in knowing whether the CPS had received extradition inquiries or requests from a State other than Sweden. However, the FtT was “unable to see how it would be of more than marginal benefit to the public for that question [concerning extradition enquiries] to be answered”.”

At paragraph 202 the Upper Tribunal decided that:

“I fail to see how a requester’s use of FOIA to obtain personal information for and about another person could rank as a relevant public interest factor favouring disclosure or, even if it did, how it could attract more than a minimal weighting. Refusing under FOIA to communicate information to an individual so that s/he can then communicate the information to the subject of the information is not, to my mind, a matter of public interest or concern.”

Information may be misunderstood

Information requested under FOIA may be technical or complex. This is not usually an argument for maintaining the exemption. The obvious solution is for you to publish an explanation of the information, rather than withhold it.

You may argue that the information would be misleading, perhaps because it consists of notes reflecting only part of a discussion or because it may be inaccurate or out-of-date. FOIA provides a right to information that public authorities hold. It does not require that the information is complete, accurate or up-to-date.

Example

In Home Office v Information Commissioner EA/2008/0027 15 August 2008, the Home Office had argued that data it held on work permits should not be disclosed because it may be inaccurate or incomplete. The Information Tribunal said at paragraph 15 that:

“… if the records are faulty or inadequate and the information turns out therefore to be inaccurate that is irrelevant: the right under the Act is to information which is held, not information which is accurate.”

You should normally be able to publish some context or explanation with the information you release. The argument that it is not in the public interest to publish inaccurate or misleading data usually only carries any weight if:

you claim the section 22 exemption (information intended for future publication); and
your publication plans included providing the necessary context or explanation.

In any other type of case, you may only use the argument if it is not possible for you to provide this explanation, or if the explanation would not limit any damage caused.

Example

In HMRC v IC EA/2008/0067 11 March 2009, the complainant requested a copy of the report prepared following an investigation into allegations about a proposed amnesty for United Kingdom tobacco producers. The Commissioner found that the information about the involvement of third parties should not be disclosed under section 31 but that the elements of the report relating to an HMRC employee could be disclosed. This was because the authority would have other means to require an employee to co-operate with an investigation which it would not have with external third parties eg employment obligations.

On appeal, HMRC argued that only disclosing the information provided by its own staff presented an “unbalanced picture”. Secondly, HMRC argued that this unbalanced picture “…would [have] a resultant deleterious effect upon future non-statutory investigations of a similar kind if the future interviewees felt there was a risk of partial, and therefore possibly unbalanced, disclosure” (paragraph 58).

The Commissioner countered these arguments by suggesting that the unbalanced picture argument was overstated because the “…. Report essentially exonerated those about whom allegations were made”. Secondly that if these third parties felt that their role in the affair had been misrepresented, then it was open to them to present their side of the story (paragraph 60).

At paragraph 59 the Tribunal said:

“….this is tantamount to a suggestion that any third parties otherwise affected could, as HMRC put it in written submissions, ‘speak up about their role and put rebuttals into the public domain’ …. HMRC points out that the Commissioner has held that it would be contrary to the public interest to require evidence of third parties to be disclosed under FOIA and therefore it would be totally inappropriate, as well as unfair, and not in the public interest to force them by indirect means to make such disclosure. The Tribunal respectfully agrees”.

The Tribunal therefore found that the public interest test for section 31 favoured maintaining the exemption. This is because it would not be in the public interest to compel third parties to present arguments in their defence when the Commissioner had already found that it would not be in the public interest to disclose information about the third parties. Therefore in this case, the prejudicial effect could not be mitigated by an accompanying explanatory statement or by setting the disclosure into context.

Similar arguments may also go to support the engagement of exemptions other than section 31.

Are there any other means of scrutiny?

It may be argued that, where issues of public concern are at stake, the existence of other means of scrutiny or regulation that could address them weakens the public interest in disclosure. This argument suggests that there is no need for the public to scrutinise the requested information through FOIA because it can be adequately considered by another body as part of their scrutiny or regulatory function.

The fact that other means of scrutiny are available, that you could use, does not weaken the public interest in disclosure. We consider this argument to be irrelevant in the public interest test. However, where you have used or are pursuing other means, this may go some way to satisfying the public interest that would otherwise be served by disclosure. If, for example, a report providing the conclusions or outcome of other means of scrutiny or regulation is publicly available, this may to some extent lessen the public interest in disclosing the information requested under FOIA. Furthermore, if the other investigation is ongoing, the public interest may be better served by allowing it to continue without interference, rather than disclosing information prematurely.

The questions you should consider are:

how far do the other means of scrutiny go to meet the specific public interest in transparency in any particular case; and
what information is available to the public by these other means?

There is always some public interest in disclosing the ‘full picture’, for general transparency and accountability, so you cannot completely discount the public interest in disclosure.

The following examples illustrate how the Information Tribunal has considered the existence of other means of scrutiny in particular cases:

Example

In University of Central Lancashire v Information Commissioner and David Colquhoun EA/2009/0034 8 December 2009, Professor Colquhoun had requested copies of the course materials for undergraduate students on the BSc course in homeopathy. He argued that this information should be disclosed to allow the public to see how the University had reconciled the principles of homeopathy with established scientific principles and to allow a proper peer review.

The University argued at paragraph 17 (iii) that it “…already did much to allow potential students and the general public to assess the value and quality of its degree courses. Its website contained a wide range of information. It provided introductory materials to potential students, including reading lists. Standards were ensured by the validation procedures which were required before a course was launched and which involved independent expert external monitors and by quality assurance (QAA) which demands a continuing compliance with national standards”.

The Information Tribunal however said at paragraph 47:

“….the public has a legitimate interest in monitoring the content and the academic quality of a course. It is no answer, we consider, to say that this function is performed by the process of validation or the continuing monitoring of standards with external input. Whether or not these processes are conducted with critical rigour, it must be open to those outside the academic community to question what is being taught and to what level in our universities”

They added at paragraph 48 that in this case there was “significant public controversy as to the value of such study within a university. In this case, that factor standing alone would have persuaded us that the balance of public interest favoured disclosure”.

Example

People for the Ethical Treatment of Animals Europe (PETA) v Information Commissioner and University of Oxford EA/2009/0076 13 April 2010, concerned a request for information on experiments carried out on a macaque monkey, including information about the project licences. PETA argued that there was a public interest in the public being informed on this issue and in the transparency of the regulatory system for animal experiments.

The First-tier Tribunal found at paragraph 60 that there was already sufficient information in the public domain to enable the public to assess the costs and benefits of the experiments. Furthermore, at paragraph 62 they considered that the system of internal scrutiny was already sufficiently rigorous:

“The Tribunal recognized that the opportunities for external scrutiny are limited, however they accepted the evidence of Professor Phillips that the “internal” scrutiny involved in the 3 stage process of: grant application, ethical approval and Home office licence was rigorous. This was not a public process, however, those involved were drawn from a wide variety of backgrounds including scientists in other fields, ethicists, statisticians and those opposed to animal experimentation. Whilst it was accepted that no regulatory system was flawless and there would be individual cases where the system broke down, there was no evidence that as a system it is malfunctioning.”

What about the interests of people in other countries?

Where information is about events in another country or the actions of a foreign government, it may be argued that the public interest test should consider the interests of the people of that country. In our view, the purpose of FOIA is to promote transparency about the UK government and the public authorities defined in section 3(1). So, any interest that people of another country have in greater transparency about their government and their public authorities is not relevant to the public interest test under FOIA.

If citizens and residents of other countries wish to understand more about the actions of the UK government, they can submit FOIA requests in the same way as UK citizens - a FOIA requester does not have to be a UK national or resident. This is clarified in the Explanatory Notes on the Freedom of Information Act at paragraph 49 and confirmed in Maurizi and others v Information Commissioner and others EA/2020/0087 EA/2019/0214 EA/2019/0223 EA/2020/0056 EA/2020/0105.

The public interest test is not about whether it is in the specific interests of the people of a foreign country to hold the UK government to account. But rather, that it is in the general public interest that there is transparency about what the UK government does. The public interest test is about what is in the best interests of society in general, and this includes citizens of other countries.

How do we attach weight to the PIT arguments we have identified?

Once you have identified the relevant public interest arguments for maintaining the exemption and for disclosure, you must then assess the relative weight of these arguments. You should decide where the balance of public interest lies. This is not an exact process, but you should try to approach it as objectively as possible. If the ICO is dealing with the case, we will consider these arguments, or consider other public interest arguments that you did not include, and may reach a different conclusion.

Certain factors can add weight to the arguments on either side and these will help decide where the balance of public interest lies. These factors include the following:

Likelihood of prejudice

A key factor is your assessment of the likelihood of prejudice. Likelihood is discussed in detail in our guidance on the prejudice test. Briefly, in engaging a prejudice-based exemption, you have to decide whether disclosure would or would be likely to cause the prejudice described in the exemption. “Would” means more probable than not (a more than 50% chance). “Would be likely” means that there must be a real and significant chance of the prejudice occurring, even though the probability may be less than 50%.

‘Would’ is a higher standard to meet than ‘would be likely’. So, if you can establish that prejudice would happen, the argument for maintaining the exemption carries greater weight than if you had only established that prejudice would be likely to happen. This does not mean that where prejudice would happen, the public interest will always be in favour of the exemption. There may be equally weighty arguments in favour of disclosure. But, it does make it more likely that the balance of public interest will be in favour of maintaining the exemption.

There may be cases in which the ICO does not accept that you have shown that prejudice would happen and instead proceeds on the basis of would be likely. This proviso does not apply in the special circumstances of section 36 (prejudice to the conduct of public affairs). For further explanation of this, see our separate guidance on section 36.

Severity

The severity of the prejudice that may happen also affects the weighting. This is about the impact of the prejudice when it happens and not about how frequently the prejudice may happen; that is part of the likelihood of it occurring. Prejudice may still happen, even if its impact would not be severe. However, if the prejudice has a particularly severe impact on individuals or the authority or other public interests, then this will carry considerable weight in the public interest test. This would be relevant if, for example, there is any risk of physical or mental harm to an individual.

Example

In People for the Ethical Treatment of Animals Europe (PETA) v Information Commissioner and University of Oxford EA/2009/0076 13 April 2010, the University argued that publishing certain information about animal experiments would be likely to endanger the physical and mental health and safety of University staff and visitors, given the activities of animal-rights extremists. Section 38 FOIA, relating to health and safety, was therefore engaged.

The First-tier Tribunal said at paragraph 68:

“… the University argued that there was significant additional weight in favour of withholding the disputed information because of the nature of the threat (in this case an increased risk of indiscriminate and extreme acts of bombing and arson). It was not suggested that the nature of the risk has the status of turning section 38 into an absolute exemption but that it requires a very strong public interest to equal or outweigh it. The Tribunal agrees with this assessment of the weight that should be given to the nature of the additional endangerment in this case, and in light of the history … considers that section 38 is engaged, and that significant and conclusive weight should be given to the factors weighing against disclosure of the disputed information in this case.”

In our view, severity and likelihood together indicate the impact of the prejudice. This in turn will affect the weight attached to the arguments for the exemption.

This is shown in the following diagram, where 1 represents the lowest relative weight and 4 represents the highest relative weight:

Severe	3	4
Not severe	1	2
	Would be likely	Would

This indicates that a severe prejudice that would be likely to happen would attract greater weight in the public interest test than a prejudice that would occur but would not be severe.

Age of the information

Generally speaking, the public interest in maintaining an exemption will diminish over time. This is because the issue the information relates to becomes less topical or sensitive and the likelihood or severity of the prejudice diminishes.

Example

Decision Notice FS50737561 concerned a request to the Department for Exiting the European Union DExEU) for mapping exercise information relating to the Northern Ireland/Ireland border question which arose in relation to exiting the European Union. DExEU refused to disclose the requested information under section 35(1)(a) FOIA. The Commissioner upheld the application of the exemption and decided that as the withheld information was material which formed the baseline for the policy development on the Norther Ireland/Ireland border question and at the time of the request was still in draft form, despite the strong public interest arguments in favour of disclosure, the public interest favoured maintaining of the exemption. However in this case DExEU had indicated a commitment to disclose a finalised version of the mapping exercise once complete. Whilst the Commissioner made no comment on whether her decision regarding the balance of the public interest would be different if the information under consideration were requested for comparison following publication, however she did recognise at paragraph 30 that:

“The time factor that constitutes an important factor in the Commissioner’s decision in this case would not be of the same significance and the importance of being fully transparent would carry even greater weight.”

However, the above is not necessarily true in every case. For example, an investigation may be closed for a long time and you may argue that the weight of public interest in disclosure has increased. But if you re-open the investigation, the weight of the public interest argument for the exemption may be restored. So, the weight of the arguments on either side can depend on the age of the information and the timing of the request.

Example

In Clark v IC & the Commissioner of Police for the Metropolis EA/2017/0167, which concerned a request for files relating to the ‘Nude Murders’. These were unsolved murders of women who were known, or suspected, of making a living as sex workers in West London in the 1950s and 1960s. The requested information had been withheld under section 31(1)(a)-(c) FOIA. The First-tier Tribunal was presented with witness evidence from the Metropolitan Police Special Casework Investigation Team in the Homicide and Major Crime Command:

“Her evidence was that cold cases can sometimes become live investigations, and she gave examples of active enquiries into murders committed as long ago as the 1970s. She explained that, if witnesses or suspects gained access to the information in the police investigation files through a FOIA disclosure, this could affect their evidence and lead to difficulty in securing a fair trial and/or safe conviction.”

The Tribunal decided that:

“We are satisfied that the potential for re-investigation of the eight murders engages (a) the detection of crime, (b) the apprehension or prosecution of offenders and (c) the administration of justice. We are satisfied on the basis of ADI Stansfield’s evidence that there is a realistic likelihood of prejudice to these aspects of law enforcement if the information requested were disclosed to the “world at large” under the auspices of FOIA. We agree with the Information Commissioner that, whilst there is a legitimate public interest in scrutinising the adequacy of the police investigation into the murders of these vulnerable women in circumstances where there has been no conviction, the public interest favours protecting the integrity of any possible re-investigation and in promoting the highest possibility of there being due process and a safe conviction while this is still possible.”

So despite the age of the withheld information, the public interest still favoured maintaining the exemption in this case.

FOIA recognises the effect of the passage of time. Under section 63 (as amended), some exemptions cease to apply altogether after a certain number of years, when the information becomes a “historical record”. However, if information is several years old but not yet at the point of becoming a historical record, this doesn’t mean there is a stronger argument for disclosure simply because the information is nearing the point at which the exemption no longer applies.

The specific information and the public interest in disclosure

In assessing the weight of arguments for disclosure, it is important to consider how far disclosing the requested information would further the public interests identified. The information may be relevant to a subject of public interest, but it may not greatly add to public understanding. In such cases, the public interest in maintaining the exemption may outweigh that in disclosure. On the other hand disclosure may help inform that debate. If so, the public interest in disclosure is strengthened. The weight of the argument for disclosure depends on the content of the information and the nature of the public interest identified. This is shown in the following examples.

Example

In Paolo Standerwick v Information Commissioner EA/2010/0065 27 July 2010, the Appellant had made a request to the Financial Services Authority for legal advice they had obtained on the time limit for making complaints about financial advisers (the so-called “15 year long-stop”). The FSA had withheld the advice under section 42 because it was legally privileged.

The First-tier Tribunal said at paragraph 6:

“Disclosure of the advice would undoubtedly have given the public some additional understanding of the operation of a public authority with significant responsibilities and of its decision-making process in relation to the 15 year long-stop issue, which would tend to foster transparency and accountability. Having seen the advice in question, however, we can say that it would have contributed to such understanding in a very modest way, adding very little to the contents of the board paper already provided to Mr Standerwick, which itself focuses on the policy issues surrounding whether or not to introduce a 15 year long-stop rule.”

So there was little weight in the argument for disclosing this information, compared with the substantial inherent weight in preserving legal privilege.

Example

The Information Tribunal case of Office of Government Commerce v the Information Commissioner EA/2006/0068 and EA/2006/0080 19 February 2009 concerned a request to the OGC for Gateway Reviews (a type of project management document) of the Government’s identity cards programme. These were withheld under section 35 (formulation and development of government policy) and section 33 (audit functions). The Tribunal found that there was a public interest in debating the benefits and costs of the scheme, and in seeing how the scheme had evolved and how government policy on ID cards had developed. The OGC claimed that the information in the Gateway Reviews would add nothing to the public debate on the merits of ID cards. The Tribunal however said at paragraph 159:

“…the disputed information itself needs to be carefully examined to see whether it would have “materially added” to any debate. It is enough for this Tribunal to confirm that on examining this information, it would, in the Tribunal’s view, undoubtedly make an important contribution to the debate for the reasons which have been set out above, namely that there must be an assumption that an interested and educated observer would be likely to glean something material from the Reports.”

Information already in the public domain

You may need to consider whether similar information is already available in the public domain, and what effect this has on the public interest test. If similar information is already available and the requested information would not significantly add to it, the public interest arguments about furthering debate and increasing accountability may carry little weight. If the requested information contains new material that would help inform public debate, then the weight of the specific public interest argument is not reduced. Moreover, there is always some weight in the general argument for transparency and having the ‘full picture’.

The factors discussed above will help you assign relative weight to the public interest arguments on each side but they are not intended to be a complete list. Other factors may also be relevant, depending on the circumstances of the case.

How do we conduct the balancing exercise?

You must then carry out a balancing exercise to decide whether the public interest in maintaining the exemption outweighs the public interest in disclosure. If it does not, you must release the information.

Example

In O’Hanlon v Information Commissioner [2019] UKUT 34 (AAC) para 15 Judge Jacobs sets out how to conduct the public interest test. In particular, if a public authority caries out steps 1 and 2 comprehensively, the conclusion of the balance of PIT will be self-evident (in most cases):

“Section 2(1)(b) says ‘outweighs’, which inevitably leads to talk of balance, as I did in paragraph 4, and scales, as the tribunal did. These metaphors may be difficult to avoid, not least because they have a statutory basis, but they conceal the analysis that section 2(1)(b) requires. The first step is to identify the values, policies and so on that give the public interests their significance. The second step is to decide which public interest is the more significant. In some cases, it may involve a judgment between the competing interests. In other cases, the circumstances of the case may (a) reduce or eliminate the value or policy in one of the interests or (b) enhance that value or policy in the other. The third step is for the tribunal to set out its analysis and explain why it struck the balance as it did. This explanation should not be difficult if the tribunal has undertaken the analysis in the first two steps properly. It may even be self-evident.”

The following case is an example of how the Information Tribunal has approached the balancing exercise. The arguments on each side and the weight attached to them reflect the particular circumstances of this case. This case is unusual because in cases involving section 42, the strong inherent weight in preserving legal privilege often means that the public interest in maintaining the exemption outweighs the public interest in disclosure. In this case it did not, and the reasons for this are shown in the balancing exercise.

Example

Mersey Tunnel Users’ Association v Information Commissioner and Merseytravel EA/2007/0052 15 February 2008 concerned a request for legal advice received by Merseytravel, who operate the Mersey tunnels. Merseytravel had previously met losses on operating the tunnels by increasing the levy on the Merseyside district councils. When the tunnels started to make a profit the issue arose as to whether the profit should be used to repay the councils (treating the levy increase as a loan) or whether it could be used to reduce toll charges. After getting legal advice, Merseytravel used the money to repay the councils. The advice was legally privileged and hence FOIA section 42 was engaged. This is a qualified exemption, so the question was whether the public interest in maintaining legal privilege outweighed the public interest in disclosure.

The balance of public interest, as described by the Tribunal, can be summarised as follows:

Public interest in maintaining the exemption

The significant inbuilt weight of public interest in maintaining legal privilege. The Tribunal said that the inbuilt weight would have been even greater if the advice had significantly affected individuals.
The advice was still ‘live’, in the sense that it was still being relied on.
The age of the information (it was 14 years old) diminished the impact on legal privilege and reduced the weight of the argument for the exemption.

Public interest in disclosure

The specific need for transparency in this case because of Merseytravel’s lack of clarity about their legal duty to repay the district councils, in addition to the general public interest in transparency.
The amount of money involved (tens of millions of pounds).
The numbers of people affected (all users of the tunnels).

The outcome depended on the relative weight of the arguments on each side, not the quantity of those arguments. The Information Tribunal said at paragraph 51:

“Weighed in the round, and considering all the aspects discussed above, we are not persuaded that the public interest in maintaining the exemption is as weighty as in the other cases considered by the Tribunal; and in the opposing scales, the factors that favour disclosure are not just equally weighty, they are heavier.”

The lack of transparency about the basis for the authority’s actions seems to have been a crucial factor in tipping the balance.

The Mersey Tunnel case is an example of how the public interest test was carried out in that particular case. The relative weight of the public interest arguments always depend on the circumstances of the case.

How do we approach the PIT for NCND exemptions?

The public interest test is also relevant to the duty to confirm or deny. You normally have a duty under section 1(1)(a) to say whether you hold the requested information, even if you are going to withhold it. This is described in section 1(6) as the ”duty to confirm or deny”. However FOIA recognises that there are circumstances where it would be inappropriate for a public authority even to confirm or deny that they hold information. For example, the police may give a ”confirm nor deny” response if a request is about whether they are investigating something.

Most exemptions contain a sub-section setting out the circumstances where there is no duty to confirm or deny. If the exemption is prejudice-based then the question is whether stating that the information is or is not held would or would be likely to prejudice the interests that the exemption protects. If the exemption is class-based, then the duty to confirm or deny does not arise if the information (whether held or not) would engage that exemption.

If the exemption (whether prejudice-based or class-based) is qualified, then the decision to give a neither confirm nor deny response is subject to the public interest test. The effect of section 2(1)(b) is to release you from the obligation to confirm or deny that you hold the information if the public interest in neither confirming nor denying outweighs the public interest in disclosing whether you hold the information.

Example

Decision Notice FS50620058 concerned a request to the Financial Conduct Authority (FCA) for information about whether the FCA had investigated an alleged breach by a financial firm regulated by it. The FCA refused to confirm or deny whether it held such information citing section 43(3) FOIA which deals with “neither confirm nor deny" in relation to prejudice to commercial interests. In considering the public interest test, the Commissioner recognised the general public interest in the FCA being transparent in the way in performs its regulatory functions. On the other hand, he accepted the authority’s arguments about the potential commercial damage to companies if the public knew whether or not they had been investigated, paragraph 25:

“The Commissioner understands that where a company is investigated and any complaints are upheld the FCA publishes its findings but a final decision is only published once the company has had the opportunity to formally comment on the FCAs preliminary findings. This process means that the FCA only makes its findings public where the actions of the party under investigation warrant doing so and after a fair process has been followed. To reveal the existence of an investigation, and prompt speculation and damaging adverse comments, in other circumstances would be unfair.”

The Commissioner considered that the balance of public interest lay in neither confirming nor denying that the information was held.

If you are issuing a neither confirm nor deny response under a qualified exemption, your response should indicate that you have considered the public interest test specifically on the issue of whether to confirm or deny.

Example

In Maurizi, the Upper Tribunal did not find that NCND provisions must in all cases operate by reference to the terms of the request for information. At paragraph 200 it decided that:

“The FtT rightly held that section 30(3) FOIA does not inevitably operate by reference to the entirety of the requested information. In limiting the scope of the hypothetically held information as it did, the FtT was simply following through with the natural consequence of its finding that, if any information were held, it would relate to extradition. I find it very difficult to see how the FtT could have taken a different approach in the light of that finding. If, despite having found that the only Ecuadorian information that the CPS might hold would concern extradition, the FtT then subjected the entirety of Ms Maurizi’s request to the public interest balancing exercise, it would have only been storing up difficulties. How could it have determined whether the public interest in maintaining the exclusion of the duty to confirm or deny outweighed the public interest in disclosing whether the information was held when, on its findings, much of the information requested would not have been held? But the FtT did not put itself in that position, no doubt because it appreciated that it would have set up an impossible task for itself.”

“Neither confirm nor deny” is a complex area, and further information is available in our separate guidance on this topic.

How do we approach PIT under the Environmental Information Regulations?

This guidance document is about the public interest test under FOIA. The Environmental Information Regulations (EIR) also include a public interest test but there are some differences in how it works. For information on the public interest test under EIR, please refer to our guidance How exceptions and the public interest work in the EIR.

Further reading