EA/2023/0538 - [2024] UKFTT 001054 (GRC)

Section 2(2) addresses potential exemptions to the Duty to Disclose. That sectionprovides:

“In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—

(a)

the information is exempt information by virtue of a provision conferring absolute exemption, or

(b)

in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”.

The effect of the above is that some exemptions set out in Part II of FOIA are absolute and some are subject to the application of the Public Interest Test. Where an applicable exemption is not absolute and the Public Interest Test applies, this means that a public authority may only withhold requested information under that exemption if the public interest in doing so outweighs the public interest in its disclosure.

Section 2(3) explicitly lists which exemptions in Part II of FOIA are absolute. Pursuant to that section, no other exemptions are absolute. For the purposes of this appeal, the relevant exemptions are in the Relevant Sections – namely under section 31(1). Section 31(1) is not included in that list.

Accordingly, in summary, an exemption in any of the Relevant Sections is a qualified exemption, so that the Public Interest Test has to be applied, even if that exemption is engaged.