Information is falls within this exemption if:

• it is held by the council with a view to future publication by the council or another person (whether or not the date for the future publication has been determined),
• the information was already held with a view to such publication at the date of the request for disclosure and
• it is reasonable in all the circumstances for the information to be withheld from disclosure until the date of future publication.

There needs to be some evidence of a settled intention to publish at a future date.

There is no duty to confirm or deny if to do so would involve the disclosure of the information.

If information does not fall within the absolute exemption relating to information supplied by or relating to bodies involved with security services (see Appendix one, paragraph 2), it may fall within this qualified exemption, if disclosure is required for the purpose of safeguarding national security.

A certificate signed by a Minister of the Crown certifying that non-disclosure is required for the purpose of safeguarding national security is conclusive evidence of that fact.

The Information Commissioner or any applicant affected by a certificate given under this section may appeal to the Information Tribunal.

The duty to confirm or deny does not arise if exemption from that duty is required for the purpose of safeguarding national security.

Information falls within this exemption if disclosure would or would be likely to prejudice:

• the defence of the British Isles or any colony or
• the capability, effectiveness or security of the armed forces of the Crown and any forces co-operating with those forces.

The duty to confirm or deny does not arise if compliance with the duty would or would be likely to prejudice any of the matters referred to above.

Information falls within this exemption if disclosure would or would be likely to prejudice:

• relations between the UK and any other state,
• relations between the UK and any international organisation or international court,
• the interests of the UK abroad or
• the promotion or protection by the UK of its interests abroad.

Information also falls within this exemption if it is confidential information obtained from a state other than the UK or from any international organisation or international court. Such information will be confidential while it is required to be held in confidence or while the circumstances in which it was obtained make it reasonable for the state, organisation or court to expect that it will be so held.

The duty to confirm or deny does not arise if compliance with the duty would or would be likely to prejudice any of the matters referred to above or would involve the disclosure of confidential information obtained from a state other than the UK, from an international organisation or an international court.

Information falls within this exemption if disclosure would or would be likely to prejudice relations between any administration in the UK (i.e. the government of the UK, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly or the National Assembly for Wales) and any other such administration.

The duty to confirm or deny does not arise if compliance with the duty would or would be likely to prejudice any of the matters referred to above.

Information falls within this exemption if disclosure would or would be likely to prejudice:

• the economic interests of the UK or
• the financial interests of an administration in the UK (as described above).

The duty to confirm or deny does not arise if compliance with the duty would or would be likely to prejudice any of the matters referred to above.

Information falls within this exemption if the council has at any time held it for the purposes of:

• an investigation which the council has a duty to carry out with a view to ascertaining whether a person should be charged with an offence or whether a person charged with an offence is guilty of it,
• an investigation which is conducted by the council and may result in the institution of criminal proceedings which the council has the power to conduct, or
• any criminal proceedings which the council has the power to conduct.

In addition, information falls within this exemption if it was obtained or recorded by the council for the purposes of its functions relating to:

• any investigations referred to above,
• criminal proceedings which the council has the power to conduct,
• investigations carried out by the council for any of the purposes specified in s31(2) (refer to paragraph 8 below) by virtue of Her Majesty’s prerogative or powers conferred by any enactment,
• civil proceedings brought by or on behalf of the council and which arise out of such investigations or
• if it relates to the obtaining of information from confidential sources.

The duty to confirm or deny does not arise in relation to information which would be exempt under the above provisions.

Information falls within this exemption if disclosure would or would be likely to prejudice any of the following matters:

• the prevention or detection of crime,
• the apprehension or prosecution of offenders,
• the administration of justice,
• the assessment or collection of any tax or duty or any imposition of a similar nature,
• the operation of immigration controls,
• the maintenance of security and good order in prisons or other institutions where people are lawfully detained,
• the exercise by the council of its functions set out in s31(2) below,
• any civil proceedings arising out of investigations conducted for any of the purposes set out in s31(2).
  
  The purposes referred to in s31(2) are:
  
  
  • ascertaining whether any person has failed to comply with the law,
  • ascertaining whether any person is responsible for any conduct that is improper,
  • ascertaining whether circumstances exist or may arise which would justify regulatory action in pursuance of any enactment,
  • ascertaining whether a person is fit or competent in relation to management of bodies corporate or in relation to any profession or other activity which he or she is or seeks to be authorised to carry on,
  • ascertaining the cause of an accident,
  • protecting charities against mismanagement or misconduct or for protecting their property from loss or misapplication or for recovering the property of charities,
  • securing the health, safety and welfare of persons at work, and
  • protecting persons other than persons at work against risks to health or safety arising out of or in connection with the actions of persons at work.

The duty to confirm or deny does not arise if compliance with the duty would, or would be likely to, prejudice any of the matters referred to above.

This exemption applies to any authority which has functions in relation to:

• the audit of the accounts of other public authorities,
• the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions.

Information held by such an authority will fall within this exemption if disclosure would or would be likely to prejudice the exercise of the functions of the authority in relation to the above.

The duty to confirm or deny does not arise if compliance with the duty would or would be likely to prejudice any of the functions of the public authority in relation to any of the matters referred to above.

Information held by a government department or by the National Assembly for Wales falls within this exemption if it relates to:

• the formulation or development of government policy,
• Ministerial communications,
• the provision of advice by the Attorney General, the Solicitor General, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for Scotland or the Attorney General for Northern Ireland or any request for the provision of such advice or
• the operation of any Ministerial private office.

The duty to confirm or deny does not arise in relation to any information that would be exempt under this section.

This is a qualified exemption except in relation to information relating to either House of Parliament, which is an absolute exemption (refer to Appendix one, paragraph 5).

Information falls within the qualified exemption if in the reasonable opinion of a qualified person disclosure of the information would or would be likely to prejudice:

• the maintenance of the convention of collective responsibility of Ministers of the Crown,
• the work of the Executive Committee of the Northern Ireland Assembly or
• the work of the executive committee of the National Assembly for Wales or
• would be likely to inhibit:
  
  
  • the free and frank provision of advice or
  • the free and frank exchange of views for the purposes of deliberation or
• would otherwise prejudice or be likely to prejudice the effective conduct of public affairs.

Section 36(5) sets out the identity of the qualified person in relation to various public authorities. In relation to local authorities, the qualified person will be a Minister of the Crown, the local authority itself, if authorised by a Minister of the Crown or any officer or employee of the local authority authorised by such a Minister.

The duty to confirm or deny does not arise if compliance with the duty would or would be likely to, in the reasonable opinion of a qualified person, prejudice any of the matters referred to above.

Information falls within this exemption if it relates to:

• communications with Her Majesty, with other members of the Royal Family or with the Royal Household or
• the grant of any honour or dignity by the Crown.

The duty to confirm or deny does not arise in relation to any information that would be exempt under this section.

Information falls within this exemption if its disclosure would or would be likely to endanger the physical or mental health or the safety of any individual.

The duty to confirm or deny does not arise if or to the extent that compliance would or would be likely to endanger the physical or mental health or the safety of any individual.

Information falls within this exemption if an authority is obliged to make it available under the Environmental Information Regulations or if it is not obliged to make it available because of an exemption in such Regulations. The definition of environmental information is not yet finalised but the new regulations are likely to create a very broad definition.

The duty to confirm or deny does not arise in relation to any information that would be exempt under this section.

The qualified part of this exemption applies to personal information requested by a third party (i.e. not the data subject) if disclosure would not contravene any of the data protection principles but:

• it would contravene s10 of the Data Protection Act 1998 (right to prevent processing likely to cause damage or distress) or
• the information is by virtue of any provision of the Data Protection Act 1998 exempt from s7(1)(c) of that Act (the data subject’s right of access to personal data).

Visit Appendix five for more detailed guidance.

Information falls within this exemption if a claim to legal professional privilege could be maintained in legal proceedings.

Legal professional privilege applies in the following circumstances:

• communications made to and from a legal adviser (solicitor, barrister, legal executive or clerk acting for such, including employed legal advisers) acting in a professional capacity for the purpose of obtaining or giving legal advice and assistance. Such communications are privileged even if litigation is not contemplated or pending;
• the privilege extends to communications made between solicitor and barrister and two solicitors acting for the same client but not between solicitors acting for opposing parties;
• the privilege also extends to communications made between a solicitor and a third party where the communications are made after litigation is contemplated or commenced, with a view to obtaining advice or evidence for such proceedings. The litigation does not need to have commenced but there must be a bona fide belief or reasonable apprehension that litigation may ensue.
• there are exceptions to the privilege:
  • where the communication is made for a fraudulent or illegal purpose,
  • where the client waives the privilege,
  • where the communications were made for the purpose of being repeated to the party requesting disclosure.

The duty to confirm or deny does not arise if and to the extent that compliance would involve the disclosure of information in respect of which a claim could be maintained in legal proceedings.

Information falls within this exemption if:

• it constitutes a trade secret or
• its disclosure would or would be likely to prejudice the commercial interests of any person, including the council.

Trade secrets

Trade secret is not defined but is generally something that a business would consider as giving it a commercial advantage over its competitors, e.g. a secret formula, lists of names of customers and the goods that they buy or a company’s pricing structure. Questions to ask in considering whether something is a trade secret would be:

• whether the information is used for the purpose of a trade,
• whether it is obvious from the nature of the information or from the owner’s statements that release would cause harm to the company,
• whether the information is already in the public domain,
• how easy would it be for a competitor to discover or reproduce the information.

Commercial interests

The essential characteristic of commerce is trading but information likely to prejudice commercial interests may relate indirectly to any trading activity. A public authority may hold commercially sensitive information for many reasons, including the following:

• procurement of goods and services,
• regulatory functions,
• the public authority’s own commercial activities,
• policy development related to external commercial interests,
• policy implementation, e.g. awarding economic development grants,
• private finance initiatives and public-private partnerships.

In applying the exemption, it is necessary to consider whether the release of the information would prejudice someone’s commercial interests. Questions to be asked in determining this could include:

• whether the information relates to or impacts on a commercial activity,
• whether the activity is conducted in a competitive environment,
• whether there would be damage to reputation or business confidence,
• whether commercial interests are affected,
• whether the information commercially sensitive,
• the nature and the likelihood of the harm that could be caused.

Disclosure of such information at a particular time may fall within this category although disclosure of the same information at a later date may not (e.g. information relating to a tender before the contract is awarded may be exempt but after the award of the contract may not be exempt, as by that stage there would be no prejudice to the tenderer’s commercial interests).

There is no exemption from the obligation to confirm or deny that the council is holding information that constitutes a trade secret, although the duty to confirm or deny does not arise if and to the extent that compliance would or would be likely to prejudice the commercial interests of any person.