Disclosure of Information

November 3rd, 2023 by James Goudie KC

Disclosure by an authority of information that is requested under FoIA does not apply if the information is “exempt information” under Part 2 of FoIA if or to the extent that it is an absolute exemption or “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”  A number of exemptions involve assessing prejudice.  The approach to assessing prejudice is revisited in FANTA v INFORMATION COMMISSIONER (2023) UK FTT 00908 (GRC).  First, the applicable interests within the relevant exemption must be identified.  Second, the nature of the prejudice being claimed must be considered.  It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is “real, actual or of substance”.  Third, the likelihood of occurrence of prejudice must be considered.  The degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not.

Comments are closed.