This latest decision (16 March 2011) on the application of s36 of the UKFOI Act 2000, and in particular the decision that the exemption for disclosure of information prejudicial to the effective conduct of public affairs as it applies to statistical information outlines the ICO current thinking on the application of the prejudice and public interest tests.
Briefly, the requestor asked for information on the level of racial incidents recorded in schools under North Hertfordshire council district. The public authority withheld the information claiming an exemption under s 36(2)(c) of the FOI Act 2000. The decision relied in part on a 2006 Information Tribunal decision.
The decision confirmed that the steps to be taken to correctly apply the exemption are
· the applicable interests within the relevant exemption needed to be identified
· the nature of the prejudice being claimed needs to be considered
· the public authority needs to show causal relationship between potential disclosure and the prejudice
· the prejudice must be real actual or of substance
· the likelihood of occurrence of prejudice i.e. the prejudice suffered should be more than a hypothetical or remote possibility- a real and significant risk must be shown
Points of interest from the decision –
Prejudice test -it was accepted that the way of gathering the statistics was subjective and so could not be relied on to provide an accurate view and that parents would accept the ‘headline’ statistics without in depth analysis. This would prejudice the school reputation and admissions i.e. possible misrepresentation of the statistics was accepted as a consideration in establishing the likelihood of prejudice.
Public interest test -it was accepted that there was an important public interest in knowing the issues affecting children at school and whether certain schools had a particular problem with racial issues. On the other hand the likelihood of damage to reputation and consequent effect on applications; the possibility of individual identification in a school with few recorded incidents; the general public interest in maintaining good relations between the public authority and schools; the public interest in ensuring the public authority could obtain accurate information to monitor and evaluate progress in preventing and addressing racism were put forward as to why it was in the public interest to maintain the exemption.
The ICO decided on balance that the public interest in maintaining the exemption outweighed the public interest in release of the information.