FOI Exemptions – Section 22 – Yes, but are you really planning to publish the information in my FOI?

The companion to Section 21 (and not just because both FOI officers and I frequently write one when we mean the other), is Section 22. If Section 21 is there to direct you to information you could have found elsewhere, Section 22 is a heads-up that the information you want will be available elsewhere soon.

The purpose of Section 22 provides an exemption for information that is intended to be published in the future.

As a requester, your job is to avoid this one by not asking for information that you know is going to be published in the future – you can’t use FOI to get ahead of information that will be published in the future, like statistical releases or planned reports.

But this isn’t an exemption public bodies can use to avoid answering a wide-range of requests relating to a topic, just because they have a vague intention of getting round to publishing something relating to it in the future.

Should I ask for an internal review?

The main question is how vague does the refusal sound?

A good Section 22 refusal will explain how all of the information you have asked for will be covered by a publication coming out in the near future.

For example, it will link you to previous regularly-released publications or statistical bulletins that would cover your request, but for a different period, and send you a copy of the publication calendar showing when the next releases are due. Or explain the information planned to go into a report and tell you how that report is progressing towards publication.

If the future release sounds like it doesn’t quite cover everything you want – the response talks about spending on agency staff but you asked for numbers employed as well, or the future stats release will have the totals for your topic but not the detail – then you should appeal.

Like Section 21, this is an exemption that can only apply to the requested information that is going to be released in the future, it can’t be used as a blanket exemption to refuse the whole request if not all of the information will be published.

For Section 22 to apply, there must be a settled intent at the time the request is made that the specific information requested is intended for future publication. Does the response sound a bit vague in terms of intent using language like ‘considering’ or ‘hope to’?

Is there a date for publication? While there doesn’t have to be for the exemption to apply, a clear date does suggest a much more settled intent for publishing the information (it also gives you an idea of how long you’ll be waiting). If there’s no date, is there a clear plan for publishing the information – a public body planning to release the information ‘at some point’ isn’t really good enough.

You may want to make another FOI request to find out exactly what has been decided and when with regards to publishing the requested information. There is, however, no requirement to do this before asking for an internal review (and if you end up having to complain to the ICO about the refusal, the public body will likely need to show this documentation or lack of it to the case officer).

Another thing to consider is how long the public body says it’ll be until the information is released – if it’s pencilled in for next week, your internal review is going to take a lot longer than just being a bit patient.

However, if there is no date in sight or a long way off, it may be worth arguing that it isn’t reasonable to withhold the information, or it would be in the public interest to publish earlier.

Yes, this is a qualified exemption, so if the public body missed the public interest test, it may be worth asking for an internal review, and doing one for them.

The public interest in releasing the information will often be stronger if the publication date is far in the future or where it isn’t set.

PARAGRAPH 31, HTTPS://ICO.ORG.UK/MEDIA/FOR-ORGANISATIONS/DOCUMENTS/1172/INFORMATION-INTENDED-FOR-FUTURE-PUBLICATION-AND-RESEARCH-INFORMATION-SECTIONS-22-AND-22A-FOI.PDF

ICO guidance makes it clear that any harm referred to in a Section 22 public interest test must relate to publication ahead of a scheduled release date (paragraph 34), so this may be because speeding up publication would not be practical because it would have a negative impact on other areas of the public body’s work or because the information has to go through a specific checking process at a particular time.

Also, generally, public authorities will not be able to argue that information is too technical, complex or misleading to disclose, or that it may be misunderstood or is incomplete, because they can explain it or set it into context.

So general arguments of that type are unlikely to work, however, they may be accepted if the public body can argue that explanations and context won’t enough to mitigate harm from speeding up publication (Queen Mary University of London v Information Tribunal & Mr Robert Courtney [EA/2012/0229] 22 May 2013)

These above arguments will be stronger if there’s a set date or process for release (and the public interest may be more in favour of release if not).

What you can say in your internal review?

If the public body claims they will be publishing the requested information in the future but they’ve only referred to some of the things you’ve asked for or a related topic, you can start by pointing out that public bodies can only rely on Section 22, if the information they plan to publish is the information requested:

A general intention to publish some information will not suffice. It is not enough for the public authority to note that it will identify some, but not all, of the information within the scope of the request for future publication.  

The information that the public authority intends to be published must be the specific information the applicant has requested.

PARAGRAPH 5, HTTPS://ICO.ORG.UK/MEDIA/FOR-ORGANISATIONS/DOCUMENTS/1172/INFORMATION-INTENDED-FOR-FUTURE-PUBLICATION-AND-RESEARCH-INFORMATION-SECTIONS-22-AND-22A-FOI.PDF

If the public body is vague about exactly what information it will be publishing in the future, it may be worth pointing out this out. If the public body is planning to publish some information, but isn’t sure exactly what, the exemption can’t apply, as the Commissioner said in decision notice FS50121803:

Therefore although at the time of the request it was clear that the Home Office intended to public some but not all of the information within the scope of the request, it was unable to specify which information it wished to apply section 22 to and the Commissioner is not satisfied that the exemption is engaged.

PARAGRAPH 63, HTTPS://ICO.ORG.UK/MEDIA/ACTION-WEVE-TAKEN/DECISION-NOTICES/2009/465528/FS_50121803.PDF

Similarly, if the public body changes its mind about publishing some or all of the information in the future, Section 22 will no longer apply:

If, in the course of preparing information for publication, some information is discarded or rejected, the exemption under section 22 will not cover that rejected material. Clearly, at the time the decision is made to discard that material, the public authority no longer holds the information with a view to its publication.

PARAGRAPH 11, HTTPS://ICO.ORG.UK/MEDIA/FOR-ORGANISATIONS/DOCUMENTS/1172/INFORMATION-INTENDED-FOR-FUTURE-PUBLICATION-AND-RESEARCH-INFORMATION-SECTIONS-22-AND-22A-FOI.PDF

If no date for publication has been given, you could point out what ICO guidance says the public body needs to show, in order to rely of Section 22 without set date for publication, as the refusal would need to show at least one of the following:

– there is a publication deadline, but publication could be at any date before then

– publication will take place once other actions have been completed

– publication will take place by reference to other related events

– there is a draft publication schedule that hasn’t been finalised

PARAGRAPH 13, HTTPS://ICO.ORG.UK/MEDIA/FOR-ORGANISATIONS/DOCUMENTS/1172/INFORMATION-INTENDED-FOR-FUTURE-PUBLICATION-AND-RESEARCH-INFORMATION-SECTIONS-22-AND-22A-FOI.PDF

With Section 22, one of the test is whether it is reasonable for the public body to delay the publication of the requested information until a future point in time. If the date is not set or is very far in the future, it may be useful to point out that in decision notice, FS50121803, the Commissioner said:

However, in considering section 22(1)(c) timing is a key factor in considering what is reasonable in the circumstances. The Commissioner is of the view that, in general, the sooner the intended date of publication, the better the case for maintaining the exemption.

PARAGRAPH 60, HTTPS://ICO.ORG.UK/MEDIA/ACTION-WEVE-TAKEN/DECISION-NOTICES/2009/465528/FS_50121803.PDF

As well as this, you can also argue that the public interest in disclosing the requested information outweighs the public interest in maintaining this exemption (or just carry out the public interest test the public body forgot to do).

What harm would be done by releasing the information or some of the information earlier than planned? Does it really exist? Could it be mitigated with some extra explanation?

Why is it in the public interest for this information to be released as soon as possible – is it an unreasonably long delay, is it information where there is a public interest in it being released as soon as possible (hot topic etc, or concern about wrongdoing that needs to be addressed).

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