Section 12: Exemption where cost of compliance exceeds appropriate limit

57.     This section exempts public authorities from the obligation to disclose the information requested, if the cost of doing so exceeds a threshold prescribed by the Secretary of State. It allows the Secretary of State to prescribe different amounts for different authorities. It enables the Secretary of State to make regulations to allow authorities to aggregate the costs of requests for information where two or more requests are made by one person, or by two or more persons acting together. It also enables the Secretary of State to make regulations governing the matters to be taken into account in calculating the costs, and the manner in which they are to be estimated.

Section 13: Fees for disclosure where cost of compliance exceeds appropriate limit

58.     This section provides that a public authority may charge for the communication of any information the communication of which is not required under section 1(1), because the cost of compliance exceeds the appropriate limit, and is not otherwise required by law. Such fees are to be determined by the public authority in accordance with regulations made by the Secretary of State. It enables public authorities to charge for large amounts of information that might not be otherwise disclosed due to cost considerations. This does not affect existing statutory provisions as to fees to be charged for the disclosure of information.

Section 14: Vexatious or repeated requests

59.     Subsection (1) states that an authority is not obliged to comply with vexatious requests. This is not intended to include otherwise valid requests in which the applicant happens to take an opportunity to vent his frustration.

60.     Subsection (2) states that an authority does not have to comply with repeated or substantially similar requests from the same person other than at reasonable intervals.

Section 15: Special provisions relating to public records transferred to Public Record Office, etc.

61.     This section addresses the situation where the appropriate records authority (for example, the Public Record Office) receives a request for information which is (or which, if it existed, would be) contained in a transferred public record and the duty to confirm or deny does not arise in relation to that information or the information is exempt only by virtue of a provision in Part II which is not specified as conferring absolute exemption in section 2(3). In such cases the appropriate records authority will send a copy of the request to the responsible authority (generally, that will be the public authority that transferred the information to the appropriate records authority) within the time period allowed for compliance with section 1(1).

62.     Subsection (3) provides that the responsible authority shall reply to the appropriate records authority, within a reasonable time, giving their decision as to the balance of the public interest, in respect of either the duty to confirm or deny or to disclose the information (as relevant), as required by section 66(3) or (4).

63.     Subsection (4) defines 'transferred public record' for the purposes of the Act as a public record that has been transferred to the Public Record Office, another place of deposit appointed by the Lord Chancellor under the Public Records Act 1958, or the Public Record Office of Northern Ireland.

64.     Subsection (5) defines for the purposes of the Act 'appropriate records authority' and 'responsible authority' in relation to a transferred public record.

Section 16: Duty to provide advice and assistance

65.     This section places a duty on authorities to provide advice and assistance to applicants or would-be applicants for information. An authority is deemed to have complied with this duty with respect to any request for information if it has conformed with the Secretary of State's code of practice issued under section 45 in relation to that case.

Refusal of request

Section 17: Refusal of request

66.     Subsection (1) requires that a public authority which is relying on a claim that the duty to confirm or deny does not arise, or on a claim that the information is exempt information, gives the applicant notice of that fact, specifying the exemption in question and stating (if that would not otherwise be apparent) why the exemption applies. Such a notice must be given within 20 working days.

67.     Subsection (2) provides that where the public authority (or, in a case falling within section 66(3) or (4), the responsible authority) has not yet reached a decision on the application of section 2(1)(a) or (2)(b) (that is whether the public interest in maintaining the exclusion of the duty to confirm or deny, or in maintaining the exemption, outweighs the public interest in disclosing that the authority holds the information, or disclosing the information, as the case may be), the notice under subsection (1) must indicate this and must give an estimate of the date by which the public authority expects such a decision will be made.

68.     Subsection (3) provides that where an authority has decided, under section 2, that, in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny, or in maintaining the exemption, outweighs the public interest in disclosing whether the authority holds the information or in disclosing the information itself, that authority must state the reasons for its decision. This must be done either in the notice given under subsection (1) or in a separate notice given within a reasonable time.

69.     Subsection (4) provides that a public authority is not obliged to make a statement under this section if, or to the extent that, the statement would involve the disclosure of information that would itself be exempt.

70.     Subsection (5) provides that where a public authority is relying on a claim that the cost of complying with the request would exceed the appropriate limit, or that the request is vexatious or repeated, then it must give the applicant notice of that fact within the time limit set down for complying with requests.

71.     Subsection (6) provides that if the request is vexatious or it repeats an earlier request and the authority has already given the applicant a notice in relation to a previous request for information stating that it is relying on such a claim, the authority is not obliged to give the applicant notice of the reason for its refusal if, in all the circumstances, it would be unreasonable to expect it to serve a further notice.

72.     Subsection (7) provides that a notice under subsection (1), (3) or (5) must contain particulars of any procedure the authority has for dealing with complaints, or a statement that the authority does not have such a procedure, and must contain particulars of the right conferred by section 50 (application for a decision by the Commissioner).

The Information Commissioner and the Information Tribunal

Section 18: The Information Commissioner and the Information Tribunal

73.     Subsections (1) to (3) rename the Data Protection Commissioner as the Information Commissioner and the Data Protection Tribunal as the Information Tribunal. The Commissioner and the Tribunal are to have functions both under the Data Protection Act and under this Act. Consequential amendments to the Data Protection Act 1998 and other legislation are included in Schedule 2.

74.     Subsection (5) provides that if the Data Protection Commissioner who was in post immediately before Royal Assent remains in office for the two years after that time, she will leave office at the end of that period. Subsection (6) allows the re-appointment of a person whose appointment is terminated by subsection (5).

75.     Subsection (7) provides that, if a previous Data Protection Commissioner is re-appointed as Information Commissioner, any previous terms of office served by virtue of an appointment made before the passing of this Act are disregarded in determining the length of time for which he can serve in the new post.

Publication schemes

Section 19: Publication schemes

76.     This section places a duty on every public authority covered by the Act to adopt and maintain a scheme which relates to the publication of information by the authority, to publish information in accordance with it and to review it from time to time. The scheme has to be approved by the Commissioner. Subject to the need to obtain this approval, and to the requirements discussed below and set out in this section, each authority is free to draw up its own scheme and so can tailor its proposals to its particular circumstances.

77.     The section requires public authorities to adopt a scheme specifying the classes of information which it publishes or intends to publish, the manner of publication and whether the information is available to the public free of charge or on payment. This section is a step beyond the core access rights created by section 1.

78.     A publication scheme is intended to be a guide to the authority's publications and policy. It can be either general or specific, for example, an authority might propose that minutes of a particular committee would be published within a specified interval of time. As required in subsection (2) a scheme must describe the types of information the authority intends to publish, the manner in which it will be published, and whether there will be a charge.

79.     Subsection (3) requires a public authority, when adopting or reviewing a scheme, to have particular regard to the public interest (a) in allowing the public to have access to information held by the authority and (b) in the publication of reasons for decisions made by the authority.

80.     Subsection (4) requires an authority to publish its publication scheme but allows it to do so in whatever way it thinks fit.

81.     Subsections (5) to (7) concern the approval of publication schemes. The Commissioner may refuse to approve a scheme, approve it only for a specified period, or revoke his approval. The Commissioner must give reasons for refusing to approve or for revoking approval to a scheme.

82.     Material made generally available in accordance with a publication scheme would be exempt under section 21 from the right of access. As such, the authority would not be obliged to respond to requests for it on an individual basis.

Section 20: Model publication schemes

83.     This section gives authorities the option of adopting an 'off-the-shelf' scheme, which may have been prepared by the Commissioner, or others, rather than preparing their own. For example, a scheme could be prepared for all schools, which each individual school could adopt, or all district authorities in a county might work together to prepare a model scheme, which would then be jointly adopted. This would enable better use to be made of resources in that the Commissioner would not have to approve a large number of draft schemes and authorities could work together in preparing model schemes. A model scheme could be adopted by an authority with or without modifications. (If modifications are proposed, the further approval of the Commissioner is required in relation to those modifications.)

84.     The section contains provisions for approval, refusal to approve and revocation of approval of schemes which are comparable to those for individual schemes, except that when revoking his approval of a model publication scheme the Commissioner must publish a notice to this effect which must include a statement of his reasons.

Part II: Exempt information

85.     Part II of the Act sets out the cases in which information is "exempt information". Some provisions are class based; that is if the information is of the type described, an exemption can be claimed. Others refer to the harmful consequences of disclosure.

Section 21: Information accessible to public by other means

86.     Section 21 exempts information if it is reasonably accessible to the applicant by other means. This provision confers absolute exemption for the purposes of section 2. Information may be exempt by virtue of this provision even though it is available only on payment. Information available by virtue of other legislation (other than information which is required to be available for inspection) is deemed to be reasonably accessible to the applicant and therefore exempt. Information which is available for inspection, whether voluntarily or under another enactment, will only be exempt by virtue of this section if it is in fact reasonably accessible to the applicant. Examples of the type of information covered by this exemption include: books and pamphlets published by an authority, or birth, marriage and death certificates available under other legislation.

87.     The section does not apply simply because the information is available from the public authority itself on request (other than information which the authority is obliged by or under any enactment to make available), unless it is made available in accordance with the authority's publication scheme and any payment required is specified in or determined in accordance with that scheme.

Section 22: Information intended for future publication

88.     This section exempts information which is intended to be published, where it is reasonable that the information should not be disclosed until the intended date of publication. Examples of the type of information covered by this exemption include information relating to research projects which it would be inappropriate to publish until the project had been completed, or statistical information which is usually published to a specific timetable (annually, quarterly etc). This exemption is related to the duty to adopt a publication scheme (section 19). Where a publication scheme states that an authority will publish information on specified dates or at specified intervals the authority would normally be able to rely on this exemption in relation to particular requests for such information.

89.     Subsection (2) provides that the duty under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, itself, disclose information which it is reasonable to withhold until the publication date. This might apply where, for example, to be told that information relating to amendments to taxation is held would reveal that tax rates are to be amended, and therefore it would be reasonable for an authority neither to confirm nor deny that such information is held pending publication of the relevant policy proposals or decisions.

Section 23: Information supplied by, or relating to, bodies dealing with security matters

90.     Section 23(1) exempts, as a class, all information directly or indirectly supplied by, or relating to certain bodies dealing with security matters. This provision confers absolute exemption for the purposes of section 2.

91.     Subsection (2) provides that a certificate signed by a Minister of the Crown is conclusive proof that the information is of the type in question, subject to a right of appeal to the Information Tribunal under section 60.

92.     Subsections (3) and (4) set out the bodies concerned.

93.     Subsection (5) provides that the obligation under section 1(1)(a) to confirm or deny whether or not the authority holds the information does not arise if to comply would itself disclose information which is exempt by virtue of subsection (1).

Section 24: National security

94.     Section 24 exempts information not covered by section 23, where an exemption is required to safeguard national security. A certification process is provided which is similar to that in section 23.

95.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny whether the requested information is held does not arise where such an exemption is required in order to safeguard national security.

96.     Subsection (4) allows a certificate to describe information by means of a general description. A certificate may apply to information existing at the time the certificate is issued or it may also cover information acquired or recorded at a later date.

Section 25: Certificates under ss 23 and 24: supplementary provisions

97.     Section 25 makes supplementary provision to the certification process under sections 23 and 24, for evidential purposes. It restricts the power to sign a certificate to a Cabinet Minister, the Attorney General, the Attorney General for Northern Ireland or the Advocate General for Scotland.

Section 26: Defence

98.     Section 26 exempts information the disclosure of which would, or would be likely to, prejudice the defence of the British Islands or any colony or the capability, effectiveness or security of the armed forces.

99.     The expression "the British Islands" is defined in Schedule 1 to the Interpretation Act 1978 as meaning the United Kingdom, the Channel Islands and the Isle of Man. The expression "colony" is also defined in that Schedule.

100.     Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) where to comply would, or would be likely to, result in the harm set out in relation to defence.

Section 27: International relations

101.     Subsection (1) exempts information the disclosure of which would, or would be likely to, prejudice relations between the United Kingdom and any other State or international organisation, or international court, the interests of the United Kingdom abroad, or the promotion or protection by the United Kingdom of those interests. The definition of "State" includes the Government of any State and any organ of such government.

102.     Subsection (2) exempts confidential information obtained from a State or international organisation or international court. Subsection (3) sets out what is meant by "confidential" for this purpose.

103.     Subsection (4) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) or (2) if to comply:

• would, or would be likely to, result in the harm set out in relation to international relations; or

• would itself involve the disclosure of confidential information (whether recorded or not) obtained from another State or international organisation.

Section 28: Relations within the United Kingdom

104.     This section exempts information which would, or would be likely to, prejudice relations between any two administrations in the United Kingdom (as defined in subsection (2)).

105.     Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, result in harm of the kind described.

Section 29: The economy

106.     This section exempts information the disclosure of which would, or would be likely to, prejudice the economic interests of the United Kingdom or the financial interests of any administration in the United Kingdom, (which would include, for example, budgetary interests).

107.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, prejudice the interests mentioned in subsection (1).

Section 30: Investigations and proceedings conducted by public authorities

108.     Subsection (1) exempts, as a class, any information held at any time by a public authority for the purposes of a criminal investigation or criminal proceedings conducted by it.

109.     Subsection (2) additionally exempts, as a class, information relating to the obtaining of information from confidential sources (informers) if it was obtained or recorded for the purposes of the authority's functions relating to:

• criminal investigations;

• criminal proceedings;

• the investigations referred to in section 31;

• civil proceedings which arise from such investigations.

110.     Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsections (1) or (2).

111.     Subsection (4) treats proceedings instituted or conducted by certain connected persons as being instituted or conducted by the public authority.

112.     Subsection (5) provides that 'criminal proceedings' includes certain court-martial and disciplinary proceedings, and proceedings before a Courts-Martial Appeal Court and summary appeal courts and a Standing Civilian Court; corresponding provision is made in relation to 'offence'.

113.     Subsection (6) modifies this section in its application to Scotland, so as to take account of the different criminal procedure in Scotland.

Section 31: Law enforcement

114.     Subsection (1)(a) to (f) exempts information the disclosure of which would, or would be likely to, prejudice certain specified law enforcement matters. Subsection (1)(g) exempts information which would, or would be likely to, prejudice the exercise by any public authority of its functions for any of the purposes specified in subsection (2). This subsection essentially protects the conduct of investigations and proceedings which may lead to prosecutions. Subsection (1)(h) exempts information which would, or would be likely to, prejudice civil proceedings brought by an authority arising out of investigations conducted for the purposes set out in subsection (2). Subsection (1)(i) exempts information which would, or would be likely to, prejudice any inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 arising out of an investigation conducted for the purpose set out in subsection (2).

115.     Subsection (2) sets out the purposes referred to in subsections (1)(g), (h) and (i). These include:

• investigations into whether circumstances exist or may arise justifying regulatory action under any enactment;

• regulatory investigations relating to unfitness or incompetence of company directors;

• investigation of persons in regulated professions or who carry out activities which require a licence;

• investigations into accidents;

• action relating to charity management;

• action relating to health and safety.

116.     Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) and to comply would, or would be likely to, prejudice any of the law enforcement matters referred to in this section.

Section 32: Court records, etc

117.     This exempts, as a class, information contained in specified records. The obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to such information. This provision confers absolute exemption for the purposes of section 2.

118.     This section exempts information which is held by a public authority solely by virtue of the fact that it is contained in documents:

• filed with, or placed in the custody of, a court, or

• served upon, or by, the public authority for the purposes of such proceedings, or

• which a court has created for the purpose of such proceedings (for example, bench memoranda).

119.     Subsection (2) of this section extends the exemption to information recorded or obtained by a public authority for the purposes of its functions relating to statutory inquiries (including those to which the Tribunals of Inquiry (Evidence) Act 1921 applies) and to arbitrations. In either case, evidence could be given to the inquiry or arbitration by third parties and the inquiry could create documents of its own. A public authority could find itself holding this information either because it was a party or because inquiry papers were held by it.

120.     Subsection (4) contains a definition of "court" which is the same as that in section 19 of the Contempt of Court Act 1981, thereby bringing in tribunals and other bodies exercising the judicial powers of the State. This section also applies to the judicial functions of coroners and documents relating to any particular inquest or post-mortem examination.

121.     This section does not apply to information which a public authority holds otherwise than in the documents specified, even though the information may relate to, and be deployed in connection with, particular proceedings.

Section 33: Audit functions

122.     Subsections (1) and (2) of this section exempt the disclosure of information which would, or would be likely to, prejudice the exercise by any public authority of its auditing functions. The section relates to the audit of the accounts of other public authorities, or examinations into the efficiency, economy and effectiveness with which they use their resources to discharge their public functions. The section would not extend to the internal auditing functions of authorities.

123.     Subsection (3) provides that the duty to confirm or deny does not arise if compliance with section 1(1)(a) would prejudice the authority's auditing functions.

Section 34: Parliamentary privilege

124.     This section exempts information if this is required for the purpose of avoiding an infringement of the privileges of either House of Parliament. Subsection (2) provides that the duty to confirm or deny does not apply insofar as that exemption is required for the purpose of avoiding an infringement of the privileges of either House.

125.     Subsections (3) and (4) make provision for the Speaker of the House of Commons, in relation to that House, and the Clerk of the Parliaments, in relation to the House of Lords, to sign certificates as conclusive evidence that the exemption applies.

Section 35: Formulation of Government policy etc.

126.     Subsection (1) provides that information held by a government department or by the National Assembly for Wales is exempt, as a class, if it relates to the formulation or development of government policy, ministerial communications, Law Officers' advice or the operation of a Ministerial private office.

127.     Subsection (2) provides that once a decision as to government policy has been taken, any statistical information used to provide an informed background to that decision cannot be exempt information by virtue of subsection (1)(a) or (1)(b). Such statistical information could be exempt under section 36.

128.     Subsection (3) provides that the duty to confirm or deny does not arise in relation to information which is exempt by virtue of subsection (1).

129.     Subsection (4) requires that a public authority must have regard to the particular public interest, when making any determination under section 2 in relation to information exempt by virtue of subsection (1)(a), in the disclosure of factual information which has, or is intended to be used, to provide an informed background to decision taking.

130.     Subsection (5) clarifies that "government policy" includes the policy of the Executive Committee of the Northern Ireland Assembly and the policy of the National Assembly for Wales and defines "the Law Officers", "Ministerial communications" and "Ministerial private office" for the purposes of this section.