APPLYING THE LAW

What Type of Information Can You Legitimately Withhold:
Practicing Applying Exemptions

In practice, it can sometimes be difficult to apply exemptions. There can often be good reasons on both sides of the argument, which support disclosure and non-disclosure. In such circumstances, the key is to consider all the arguments and then make a decision which you think best supports the public interest. If you are in doubt, consider asking your superior for their advice.

The Central Act specifically requires that if a PIO asks another officer for assistance it should be provided - so you can feel free to ask any officer in your organisation, or even in another organisation, to assist you to make your decision.

Below if one example which draws out the difficult balancing of interests a PIO may sometimes have to undertaken when deciding whether to release information:

'The research and development division of a state-owned manufacturing company has developed a revolutionary new production technique. This technique is well in advance of anything developed by the company's international competitors. It will dramatically reduce the number of workers required.

A request for information about the process has been lodged by an environmental group, which is concerned about the danger of liquid waste from the new technique seeping into water courses.

Your RTI Act makes an explicit exception of information that is a commercial secret.

Do you release the information or not?'

The first question you need to consider is whether the information requested falls under an exemption. Quite obviously, this information will be covered by an exemption clause, which protects against the disclosure of "trade or commercials secrets".

Secondly, you need to consider whether any harm would be caused by releasing the information. If the technique is very far ahead of the company's competitors, it is likely that revealing it may harm the company's commercial position because they will make less money out of the technique if lots of other companies can market it as well. Even though an NGO has asked for the information, the fact remains that if the information is released to the NGO, all of the company's competitor's could also try to get hold of it.

Notably, it is not enough that you might think that revealing certain information might cause damage to protected interests. If you want to rely on an exemption, you need to believe, with a fair degree of certainty, that harm is reasonably likely to be caused if the information is released. It is the responsibility of the government to prove that there will be substantial harm, not for the person requesting the information to prove that there will not be.

Thirdly, even if the information is covered by an exemption and you feel that serious harm may be caused by releasing it, the final test is to see whether the public interest might still require the information to be disclosed. This will require you to balance whether protecting against the likely harm from disclosure is more important than the benefits to the public interest from disclosure - in the specific case.

In the above scenario, we know what the harm to the company is. Weighed against this there are two possible grounds for concluding that releasing the information would be in the public interest:

• The first is the reason the environmental group sought the information - the potentially harmful impact of waste disposal, which should be open to public scrutiny.
• The other reason for public interest would be the impact of the new technique on employment. It is not automatically a positive development for a state-owned company to cut jobs. This too is an issue that should be open to public scrutiny.

Notably, balancing competing interests is never easy. For this reason, no matter what your final decision is - do you release the commercial information requested above or not? - you should always provide clear reasons for how you reached your conclusions. This will help to reduce the number of appeals you will face because if the public can understand your reasoning, the may be less likely to question it.