ICO revises guidance on safe space exemption for policymaking

The Information Commissioner’s Office has published revised guidance on how central government departments should apply the s. 35 exemption that protects the safe space for policymaking and ministerial communications.

Writing on the ICO’s blog, head of policy Steve Wood said: “While less than 300 words, the exemptions in section 35 attract much attention.

“The line beyond which transparency begins to prevent effective government is one that must be drawn with considerable care, and as a responsible regulator, we see our role as crucial in helping to judge where it lies.”

Wood said there was much to be learnt from ICO cases and decisions from the Tribunal and Higher Courts in the last eight years.

“That context goes someway to explaining why extensive guidance is needed to explain a single section,” he added.

The ICO’s head of policy highlighted how much of the document was dedicated to gauging the public interest arguments in favour of maintaining the exemption, “notably in assessing potential damage to policymaking from the content of the specific information and the timing of the request”.

The guidance also analyses what is meant by ‘policymaking’, including who can make policy, and when policy formulation ends and implementation begins.

“There are sections too on the oft-mentioned buzz words of safe space and chilling effect,” Wood says. “It uses examples throughout, illustrating where the Commissioner or Tribunal upheld the use of section 35, and some where it was rejected.”

Wood pointed to other guidance published by the ICO this week, namely

  1. Information in the public domain: this covers issues to consider if the requested information (or some related info) is already publicly available, “particularly how this will affect exemptions and the public interest test".
  2. Personal data of the requester and others: how to deal with requests for information which includes the personal data of several different data subjects, one of which is the requester. The guidance covers both the FOI Act and the EIR.
  3. Public Contract Regulations: the impact of regulation 43 of the Public Contract Regulations 2006 on the disclosure of information under both the FOI Act and the EIR.
  4. Information about the deceased: how to deal with these requests under both the FOI Act and the EIR.

Updated guidance also released by the ICO includes:

  1. The prejudice test, The public interest test, and How exceptions and the public interest test work in the EIR: “to clarify the position where the requested information is misleading or could be misunderstood”.
  2. The effective conduct of public affairs (section 36): to reflect developments in the ICO’s approach to safe space and chilling effect arguments in line with the section 35 guidance.
  3. Internal communications (regulation 12(4)(e)): to clarify that communications between a government department and non-departmental public bodies will not be caught by the exception, and reflect developments in the ICO’s approach to safe space and chilling effect arguments.
  4. The Guide to FOI and The Guide to EIR on what constitutes a valid request, “to clarify that this is not a hard test to satisfy”. Wood said most requests for information would trigger the Act or the EIR, “even if they are vague or otherwise difficult to answer”. However, he added that the Act and the EIR contained other provisions to deal with requests which are too broad, unclear or unreasonable.

The ICO head of policy said the watchdog would publish further guidance next month, in particular around vexatious requests.