The public interest test is one of the more misunderstood elements of Freedom of Information in Scotland and is something that I'm often asked to explain. As I've found myself talking about this a couple of times already this week, I thought I'd pop a post up here outlining how it works.
The fact that the public interest is mentioned at all in the legislation leads to a perception amongst some in public authorities that it should be the first thing considered when responding to requests and a belief amongst applicants that 'of course I should get this information; it's in the public interest for you to give it to me'. Actually, the public interest test is the final part of the FoI process in those circumstances where a public authority wishes to withhold information by claiming a 'qualified' exemption.*
The process of answering FoI requests runs along the following lines:
- consider the the request
- identify whether the information is held
- if it isn't, inform the applicant of that
- if it is, review the information to see if there are any concerns about disclosure
- if there are no concerns release the information
- if there are concerns, consider whether any exemptions from disclosure are applicable and whether those exemptions can be appropriately applied (including an assessment of the harm test** if required)
It is only at this point (ie when the public authority wants to claim a qualified exemption from disclosure) that a consideration of the public interest takes place. Essentially, the public interest test requires the public authority to evaluate whether greater public interest lies in the information being released or withheld. Where the balance is even the presumption is that the information should be disclosed. Where the balance is even or in favour of disclosure, the disclosure takes place notwithstanding any harm that could be caused by the release of the information concerned (which will have been identified during the consideration of the exemptions being claimed).
[As an aside, this is why we have some 'absolute' exemptions that are not subject to a public interest test. They help prevent things like the inappropriate release of personal information taking place on the basis of a public interest argument.]
From the process outlined above, we can see that the public interest isn't something that is considered unless a qualified exemption from disclosure is being claimed by a public authority and, even then, it is only considered after the authority has established that it can/wants to claim the exemption in question. If the authority doesn't have the information being requested, the public interest isn't a factor. Similarly, if the organisation does have the information, but is prepared to release it, there is no need to think about the public interest in doing so; it's just a routine disclosure of information made in response to a request under the Act.
So, although the public interest itself is a broadly used concept, the public interest test, in FoI terms, has a very specific meaning and is used in a very specific way. Because the normal expectation is that when an applicant requests information they will receive it, the public interest isn't something that is considered in every response to FoI requests. It is only a factor when public authorities wish to withhold information by claiming some of the exemptions in the legislation.
* A small number of 'absolute' exemptions are not subject to the public interest test.
** I'll write more about harm and the harm test in a later post.