FOI Exemptions: Office of the Information Commissioner

Documents are exempt under clause 3(1) if their disclosure would reveal personal information about an individual (whether living or dead).

Personal information is defined in the Glossary to the FOI Act.

There are several limits to this exemption. That means that personal information is not exempt under clause 3(1) if:

• disclosure would merely reveal personal information about the applicant (clause 3(2));
• disclosure would merely reveal prescribed details about officers or former officers of agencies, or persons who perform or have performed services for agencies under a contract for services (clauses 3(3) and 3(4)). Prescribed details include certain work-related information such as an officer’s name, title, work-related qualifications, functions and duties, and things done in the course of the officer’s functions or duties (regulation 9 of the FOI Regulations);
• the applicant provides evidence that the individual concerned consents to the disclosure of their personal information to the applicant (clause 3(5)); or
• its disclosure would, on balance, be in the public interest.

Clause 4 contains three separate exemptions.

These exemptions are intended to protect commercial or business information supplied to government by third parties and about third parties dealing with government.

Documents are exempt under clause 4 if their disclosure would reveal:

• trade secrets (clause 4(1)); or
• information that has commercial value to a person and disclosure could reasonably be expected to destroy or diminish that commercial value (clause 4(2)); or
• information about the business, professional, commercial or financial affairs of a person, and disclosure could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of information to the government or an agency (clause 4(3)).

There are several limits to these exemptions. Matter is not exempt under the above clauses:

• if its disclosure would merely reveal information about the business, professional, commercial or financial affairs of an agency or the applicant (clauses 4(4) and 4(5); or
• if the applicant provides evidence that the person concerned consents to the disclosure of the matter to the applicant (clause 4(6)).

In addition, matter is not exempt under clause 4(3) if its disclosure would, on balance, be in the public interest.  The exemptions in clauses 4(1) and 4(2) are not subject to that public interest limitation.

NOTE: Reference to ‘person’ in the FOI Act includes a public body, company, or association or body of persons, corporate or unincorporate (Interpretation Act 1984).

Downloads

FOI Exemption Guide - clause 4(2) (PDF)

FOI Exemption Guide - clause 4(3) (PDF)

The exemption in Clause 6(1) is intended to protect from disclosure material forming part of the decision-making of government when circumstances require confidentiality of those deliberations. To rely on this exemption, an agency must establish not only that disclosure of the relevant information or documents would reveal the deliberations of government but also that its disclosure would, on balance, be contrary to the public interest. This can be a difficult requirement to meet.

Downloads

FOI Exemption Guide - clause 6 (PDF)

The exemption in Clause 7 of Schedule 1 to the FOI Act provides that matter is exempt if it would be privileged from production in legal proceedings on the ground of legal professional privilege.

Legal professional privilege protects the confidentiality of certain communications made in connection with, or brought into existence for, the giving or seeking of legal advice or for use in existing or anticipated legal proceedings.

There is no ‘public interest’ test attached to this exemption.

Downloads

FOI Exemption Guide - clause 7 (PDF)

Matter is exempt under Clause 8 if disclosure would:

• be a breach of confidence for which a legal remedy could be obtained (clause 8(1)); or
• reveal information of a confidential nature obtained in confidence and could reasonably be expected to prejudice the future supply of information of that kind to the government or an agency (clause 8(2)).

Matter is not exempt under clause 8(2) if its disclosure would, on balance, be in the public interest.  However, the exemption in clause 8(1) is not subject to a public interest test.

Downloads

FOI Exemption Guide - clause 8 (PDF)

Where an agency considers that a document is exempt under Schedule 1 to the FOI Act, section 23(1)(a) provides that the agency may refuse access to the document. Section 23 does not provide that an agency must refuse access.

In effect, this means that, when dealing with an access application, agencies have a discretion to release documents that may be technically exempt if they are of the view that no harm is likely to follow from disclosure of the information.

This is consistent with the objects of the FOI Act and the duties of agencies when applying the FOI Act.  In particular, agencies are to give effect to the FOI Act in a way that assists the public to obtain access to documents promptly and at the lowest reasonable cost (sections 3 and 4).

Agencies need to make their own judgment as to when it is appropriate to release documents that are technically exempt in any given case.

Some of the factors that might be relevant to the exercise of discretion when deciding to give access to documents include:

• the age of the document and whether the subject matter is current;
• whether a similar kind of information that is contained in the document has already been disclosed in another way (for example, media statements and - articles, website publication or parliamentary debates (Hansard));
• the interests of the access applicant; and
• the rights of and impact on third parties.

While an agency has a discretion to disclose exempt information, this does not remove the agency’s obligation to seek the views of third parties (section 32 and 33), if the agency intends to disclose information about those third parties when dealing with an access application.

Some of the exemptions in the FOI Act require an agency’s decision-maker to decide whether disclosing certain information is, on balance, in the public interest.

If the agency is required to consider the public interest, this usually means that information that would otherwise be exempt will not be exempt if its disclosure would, on balance, be in the public interest.

So what does the term ‘public interest’ mean?

It is not defined in the FOI Act. It can be a complex legal concept.

Consideration of the public interest under the FOI Act is not primarily concerned with the personal interests of the particular access applicant or with public curiosity. The public interest is a matter in which the public at large has an interest as distinct from the interest of a particular individual or individuals. The question is whether, on balance, giving access to the information would be of some benefit to the public generally.

Deciding whether or not disclosing information would, on balance, be in the public interest test involves identifying and weighing the relevant competing public interests for and against disclosure of the information and deciding where the balance lies.

TIP: In relation to personal information of a private nature, the Information Commissioner has consistently found that there is a very strong public interest in maintaining the privacy of individuals. If you are seeking information about another person, the onus is on you to establish that it is in the public interest for private information about the other person to be disclosed to you (section 102).