APPLYING THE LAW

What Type of Information Can You Legitimately Withhold:
Applying the Section 8(2) Public Interest Override

Section 8(2) of the Central Act requires that even where an exemption provision or the Official Secrets Act applies, an official will still need to disclose the information requested "if [the] public interest in disclosure outweighs the harm to the protected interests".

The term "public interest" is deliberately not defined in the Central Act. Because of this, public authorities - more specifically, Public Information Officers, Appellate Authorities and Information Commissioners - will need to judge each case on its merit and in light of any emerging guidance or best practice. Notably in this context, what is held to be in the public interest will change over time and it will also depend on the particular circumstances of each case. Consideration of the public interest is made on a case-by-case basis.

The main factors counting against the disclosure of information are those which are set out in the section 8(1) exemptions themselves. For instance, there is an obvious public interest in national defence, maintaining good international relations and law enforcement. If disclosure of information would adversely affect these matters, then it is relevant to consider the exemptions, although the possible adverse effect of disclosure still need to be weighed against the positive benefit of openness.

When applying the public interest override in section 8(2), officials should exercise their discretion as far as possible to facilitate and promote the disclosure of information, in accordance with the objectives of the Act. In practice, officials should identify - in writing - all public interest considerations favouring disclosure or non-disclosure of a particular matter. Identifying public interest factors in a general way is not enough. The organisation must be satisfied that the disclosure of the particular information would lead to some harm or benefit to the particular public interest factor before it becomes relevant.

The comparative strengths/importance of the public interest issues identified must then be weighed against each other to decide whether or not those favouring disclosure outweigh those favouring non-disclosure. The extent of the harm or benefit will influence the weight to be given to the factor. When weighing competing interests, consider any probable harm from disclosure and the fact that information generally becomes less sensitive over time. Be proactive and consider whether the exemption as applies to an official document has outlived its purpose.

How to apply sections 8(1) and 8(2) of the RTI Act 2005
Step 1: Consider whether all the requirements of any of the exemptions in s.8(1) are satisfied
Step 2: Identify all public interest factors for and against disclosure
For Disclosure For example Government accountability Public participation Public awareness Promoting human rights	Against Disclosure For example Personal privacy Efficient regulation
Step 3: Assess weight of each factor and decide whether factors against disclosure outweigh factors for disclosure*
* Where competing public interests have to be considered and the public interest in disclosing or not disclosing information is judged to be evenly balanced, public authorities should always decide in favour of disclosure.

Notably, where an official finally decides to rely on an exemption to withhold disclosure, the Central Act requires that they must provide their reasons to the applicant. These reasons should also explain how the public interest override was considered and applied. A detailed record of decision-making processes should be kept at every step when considering exemptions, so that if the applicant requests a review or subsequently appeals to the Commissioner for a decision, there is a clear record of the arguments considered regarding the public interest test. This will also help the applicant to understand how the decision was made and to properly assess whether an application for review is justified.

Public authorities must be able to provide evidence of all of the factors that were taken into consideration when the public interest test was applied to any exemption they cited. It will not be enough simply to list all the factors they thought were contrary to the public interest. Instead, officials should provide all of the public interest factors, both for and against disclosure, which were taken into account in applying the test. They must be able to show that a specific detriment would occur because of the disclosure.

References:

• CHRI (2005) Applying the "public interest override" in s.8(2) of the Right to Information Act 2005.
• Jamaican Access to Information Unit (undated) Guidance on Applying the Public Interest Test.
• Northern Territory [Australia] Information Commissioner (undated) Guidance on Applying the Public Interest Test.
• Queensland [Australia] Information Commissioner (2003) Information Sheet: Public Interest Balancing Tests in the FOI Act.
• Scottish Information Commission (2004) Guidance Note on Applying the Public Interest Test.
• UK Information Commissioner (2004) Guidance Note: Applying Exemption re Public Interest.

Please click on the link to the Central RTI Act to read the detailed provisions contained in the law. Please click on the link to CHRI's State RTI pages to find out more about relevant rules and implementation in your specific State.