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Focus on Regulation

FOIA: new research exemption comes into force

On 1 October, a new exemption (the “New Exemption“) relating to continuing programmes of research came into force under the Freedom of Information Act 2000 (“FOIA“).  Its intention is to protect information pertaining to on-going research from premature disclosure.

Section 22A FOIA – inserted by the Intellectual Property Act 2014 (“IPA“) – provides that information “obtained in the course of, or derived from, a programme of research” is exempt information if the following criteria are satisfied:

(a) the programme is continuing with a view to the publication, by a public authority or any other person, of a report of the research (whether or not including a statement of that information),  and

(b) disclosure of the information under [FOIA] before the date of publication would, or would be likely to, prejudice—

(i) the programme,

(ii) the interests of any individual participating in the programme,

(iii) the interests of the authority which holds the information, or

(iv) the interests of the authority mentioned in paragraph (a) (if it is a different authority from that which holds the information).

The New Exemption is not absolute, and a public authority seeking to rely on it will thus be required to assess whether the public interest in maintaining the exemption outweighs the public interest in disclosure.

The Ministry of Justice has published short guidance on the New Exemption. It notes, among other things, that its application is not limited to the first report that is based on the relevant research: “So long as any report of the research is still to be published, then information obtained in the course of, or derived from, the research programme falls within the scope of this exemption.”  The aim of the New Exemption is thus to protect information pertaining to such projects until they are fully concluded.

The New Exemption is both class- and prejudice-based.  So far as prejudice is concerned, in order for the New Exemption to be engaged public authorities will be required to demonstrate that the (now long-established) threshold is met, i.e. that:

(a) there is a causal link between disclosure and the prejudice claimed to one of the four factors set out in s. 22A(1) (b) (see above); and

(b) the prejudice is “real, actual or of substance”.

(see Hogan and Oxford City Council v Information Commissioner, EA/2005/0026).

In relying on the New Exemption, public authorities should be careful to assess, and state, the level of risk of the prejudice, and specify to the requester whether it considers that the prejudice “would” or “would be likely to” occur.  Failure to do so could ultimately lead the Commissioner or a tribunal in any subsequent appeal against a refusal to disclose the information to presume that the lower threshold applies (see ICO guidance on the prejudice test).

What constitutes a “programme of research” is not defined in FOIA, although the parliamentary discussion on the IPA demonstrates that the rationale for the New Exemption was to afford protection to academic research, much like the exemption in s. 27(2) of the Freedom of Information (Scotland) Act 2002 (David Willets, then Minister for Universities and Science, referred to the implementation of the “Scottish exemption”).  Nevertheless, in the context of collaborative programmes between public and private bodies, it will be interesting to see whether commercial entities will push public bodies to rely on the New Exemption alongside the protections already afforded by s.22 FOIA (information intended for future publication) and s.43 FOIA (commercial interest, including trade secrets).