Section 36: Prejudice to effective conduct of public affairs

131.     This section relates to information held by government departments which is not exempt by virtue of section 35 and information held by other public authorities. Subsection (2) provides that information is exempt if, in the reasonable opinion of a qualified person, its disclosure:

• would, or would be likely to, prejudice the maintenance of the convention of collective ministerial responsibility,

• * would, or would be likely to, prejudice the work of the Executive Committee of the Northern Ireland Assembly or the National Assembly for Wales,

• would, or would be likely to, inhibit the free and frank provision of advice or exchange of views, or

• would otherwise prejudice, or would be likely to otherwise prejudice, the effective conduct of public affairs.

132.     Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (2) if, in the reasonable opinion of a qualified person, compliance would, or would be likely to, have any of the adverse effects referred to.

133.     Subsection (4) provides that in the case of statistical information, the test is the same as in subsections (2) and (3) but is a simple prejudice test (that is, the reasonable opinion of a qualified person does not apply to statistical information).

134.     Subsection (5) defines a "qualified person".

135.     Subsection (7) provides that a certificate signed by the Speaker of the House of Commons, in relation to that House, or the Clerk of the Parliaments, in relation to the House of Lords, and stating that in his reasonable opinion, disclosure of information held by either House, or compliance with section 1(1)(a), would have the effects mentioned in subsection (2), is to be conclusive evidence that the exemption applies.

Section 37: Communications with Her Majesty, etc. and honours

136.     Subsection (1) exempts as a class, all information relating to the award of any honour or dignity by the Crown or to any communications with the Royal Family or Household.

137.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) or would be if the information existed.

Section 38: Health and safety

138.     Subsection (1) exempts information the disclosure of which would, or would be likely to, endanger the physical or mental health or safety of any individual.

139.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, result in the harm described.

Section 39: Environmental information

140.     This section exempts environmental information, which is to be made available under the regulations made under section 74 of the Act.

141.     Subsection (1) provides that such information is exempt if the public authority is obliged to release the information requested in accordance with the regulations or would be so obliged but for an exemption under the regulations.

142.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1).

143.     Subsection (3) makes it clear that the inclusion of a specific exemption for environmental information available under the regulations does not limit the width of the general exemption contained in section 21(1) (information available by other means).

Section 40: Personal information

144.     Subsection (1) exempts, as a class, personal information relating to the applicant for the information. The right to know whether this information is held, and if so to have access to it, is covered instead by the provisions of the Data Protection Act 1998 (as amended by Part VII of the Act). This provision, in relation to such information, confers absolute exemption for the purposes of section 2.

145.     Where the information is personal information relating to a third party (that is, someone other than the applicant), it is exempt under subsection (2) if its disclosure would contravene the Data Protection Act 1998 or if the person to whom it relates would not have a right to know about it or a right of access to it under that Act (because of its exemption provisions). Personal information to which the relevant provisions of that Act do not apply is treated for these purposes as if they did. The 1998 Act prohibits the disclosure of personal information where, for example, it would be unfair, or incompatible with the purpose for which it was obtained, or where the individual who was the subject of the information had properly served notice that disclosure would cause unwarranted substantial damage or distress. This provision confers absolute exemption for the purposes of section 2 where disclosure would contravene any of the data protection principles, disregarding section 33A(1) of the DPA 1998 (which contains exemptions from the principles for manual data held by public authorities).

Section 41: Information provided in confidence

146.     Section 41 exempts, as a class, information obtained from any other person if its disclosure would constitute a breach of confidence actionable by that or any other person. This provision confers absolute exemption for the purposes of section 2. A duty of confidence may be created by contract, or may arise from the circumstances. The common law of confidence itself provides that in certain circumstances a duty of confidence does not arise having regard to the public interest.

147.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.

Section 42: Legal professional privilege

148.     Section 42 exempts, as a class, information to which legal professional privilege applies.

149.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would involve the disclosure of any information in respect of which such a claim could be maintained in legal proceedings.

Section 43: Commercial interests

150.     Subsection (1) exempts information if it constitutes a trade secret.

151.     Subsection (2) exempts information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person - including those of the public authority holding the information.

152.     Subsection (3) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise if, or to the extent that, compliance would, or would be likely to, prejudice commercial interests.

Section 44: Prohibitions on disclosure

153.     Section 44 exempts all information where disclosure:

• is prohibited by or under any enactment;

• is incompatible with any European Community obligation; or

• would constitute or be punishable as a contempt of court.

(Section 75, enabling statutory prohibitions to be modified by order, is intended to complement this provision.) This provision confers absolute exemption for the purposes of section 2.

154.     Subsection (2) provides that the obligation under section 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) where compliance would itself (apart from the Act) be prohibited by or under any enactment or is incompatible with any European Community obligation or would constitute or be punishable as a contempt of court.

Part III: General functions of Secretary of State, Lord Chancellor and Information Commissioner

Section 45: Issue of code of practice by Secretary of State

155.     This requires the Secretary of State to issue, and from time to time revise, a code of practice setting out practices which he considers public authorities should follow in discharge of their duties in relation to Part I of the Act (access to information). It specifies particular matters which must be included in the code such as the advice and assistance that should be given to applicants and procedures for dealing with complaints. It also allows the code to make different provision for different authorities. Subsection (4) requires the Secretary of State to consult the Commissioner before making or revising a code; and subsection (5) provides for it to be laid before Parliament.

156.     The matters to be included in the code are administrative ones that are an important part of good practice. They form an important part of the overall scheme for dealing with requests for information. For example, the code will include provision relating to the provision by authorities of arrangements for dealing with complaints from applicants. It is envisaged that an effective complaints system will enable the more straightforward complaints to be dealt with by the authorities themselves and help ensure the best use of the resources of the Commissioner who would be able to concentrate on more complex or difficult cases.

Section 46: Issue of code of practice by Lord Chancellor

157.     This requires the Lord Chancellor to issue a code of practice setting out practices which he considers public authorities (and other authorities whose records are subject to the Public Records Act 1958) should follow in relation to the keeping, management and destruction of their records. In doing so, he is to have regard to the public interest in public access to such records. Different provision may be made in relation to different authorities. The Lord Chancellor must consult the Secretary of State and the Commissioner before making or revising the code, and it must be laid before Parliament. Corresponding provision for Northern Ireland is included.

158.     For records which are also public records for the purposes of the Public Records Act 1958, the code may also include guidance as to the transfer of records to the Public Record Office and their review before transfer. Corresponding provision for Northern Ireland is included.

159.     The requirement to have regard to the public interest in access to records reflects the intention that the code will establish standards of good practice in relation to record-keeping. Good practice would increase the efficiency with which information can be located and retrieved by authorities in response to requests for information, and therefore increase the amount of information which will be available under Part I of the Act consistent with the imposition of cost limits.

Section 47: General functions of Commissioner

160.     This section places a duty on the Commissioner to promote good practice by public authorities and promote the observance of the requirements of the Act and the Secretary of State's and Lord Chancellor's codes of practice. The duty to promote good practice includes, but goes wider than, the enforcement of the right of access under the Act; it enables the Commissioner to promote access to information held by public authorities in general. It could include the issue of advice on such matters as how to handle requests for information and the management of recorded information.

161.     Subsection (2) places a duty on the Commissioner in relation to the dissemination to the public of information in relation to the operation of the Act, good practice, and other matters within the scope of his functions under the Act. He can also give advice to any person on any of these matters.

162.     Subsection (3) enables the Commissioner to assess whether a public authority is following good practice, but only with the consent of the public authority.

163.     Subsection (4) enables the Commissioner to charge for services provided under this section, subject to the consent of the Secretary of State. This allows him to charge for matters such as information, literature, or speaking engagements, but not, for example, for performing his statutory duties to enforce Part I of the Act.

164.     Subsection (5) places a duty on the Commissioner from time to time as he considers appropriate to consult with the Keeper of Public Records or, in Northern Ireland, the Deputy Keeper of the Records of Northern Ireland about the promotion of observance of the Lord Chancellor's code of practice in respect of public records.

Section 48: Recommendations as to good practice

165.     This section enables the Commissioner to take action where an authority's practices do not conform to the Secretary of State's or the Lord Chancellor's code of practice. He may issue a practice recommendation specifying the steps the authority should take to conform, but must consult first with the Keeper of Public Records when the practice recommendation relates to a failure to conform with the Lord Chancellor's code of practice and is issued in respect of records which are public records for the purposes of the Public Records Act 1958 or with the Deputy Keeper of the Records of Northern Ireland for public records for the purposes of the Public Records Act (Northern Ireland) 1923.

Section 49: Reports to be laid before Parliament

166.     This section requires the Commissioner to lay before Parliament an annual report on the exercise of his functions under this Act, and enables him to lay before Parliament such other reports as he considers fit.

Part IV: Enforcement

Section 50: Application for decision by Commissioner

167.     This section permits any person to complain to the Commissioner about an authority's compliance with the requirements of the Act in respect of a request for information by that person.

168.     The Commissioner is required to make a decision on the authority's compliance unless:

• the complaint has not exhausted the authority's own complaints system;

• the complainant has delayed too long before complaining;

• the complaint is vexatious or frivolous; or

• the complaint is withdrawn or abandoned.

The Commissioner can in his discretion decide to reach a decision in a case where he is not obliged to do so under the Act.

169.     Subsection (3) requires the Commissioner either to notify the complainant that he has not made a decision and his grounds for not doing so, or to serve notice of his decision on both the complainant and public authority.

170.     Subsection (4) states that where the decision is that a public authority has failed in its duty to confirm or deny whether it holds information or its duty to communicate information, or has otherwise failed to comply with the Act as it relates to the means by which information may be communicated or refusal of requests, a decision notice must specify steps the public authority must take to comply with the Act and the time period for doing so. (In respect of a failure to comply with any requirement of Part I of the Act, the Commissioner would have discretion to issue an enforcement notice under section 52 whether or not any application had been made by a complainant.)

171.     Subsection (5) states that a decision notice must contain information about the right of appeal to the Tribunal against that decision.

172.     Subsection (6) provides that the time specified in a decision notice for complying with any steps required should not be shorter than the time available for an appeal to the Tribunal to be lodged. It also provides that an appeal shall be suspensory in effect as regards the matters affected by the appeal, and the steps specified in the decision notice would not have to be taken pending the outcome of the appeal.

173.     Subsection (7) provides that any decision notice has effect subject to the 'accountable person' override provisions set out in section 53 (Exception from duty to comply with decision notice or enforcement notice).

Section 51: Information notices

174.     This section enables the Commissioner to obtain from a public authority, by issuing an information notice, information (including unrecorded information) he requires to deal with an application under section 50 or to reach a determination on whether an authority has complied or is complying with Part I of the Act or with the Secretary of State's or Lord Chancellor's code of practice. He can specify the time for the authority to comply with the request and the form in which the information should be provided. This corresponds to the powers of the Commissioner under section 43 of the Data Protection Act 1998.

175.     Subsections (2) and (3) require the Commissioner to specify in the information notice the basis for asking for the information and details of the rights of appeal against the notice.

176.     Subsections (5) and (6) state that an authority is not required to supply the Commissioner with certain information relating to communications between a legal adviser and client (or a person representing a client) about the client's compliance with the Act or any proceedings arising from it.

177.     Subsection (7) allows the Commissioner to cancel an information notice.

Section 52: Enforcement notices

178.     This section enables the Commissioner to issue an enforcement notice if he is satisfied that a public authority has failed to comply with any of the requirements of Part I of the Act. The notice would require the authority to take, within a specified time, such steps as may be specified for complying with the requirements of Part I of the Act. The section contains provisions relating to appeals (comparable to those for decision notices and information notices). Again, any enforcement notice has effect subject to section 53 (Exception from duty to comply with decision notice or enforcement notice).

179.     Provisions in section 52 correspond to the powers of the Commissioner under section 40 of the Data Protection Act 1998. Experience of enforcing data protection legislation suggests that the powers may be rarely needed and used only when informal procedures have failed.

Section 53: Exception from duty to comply with decision notice or enforcement notice

180.     Section 53 enables 'the accountable person' (as defined in subsection (8)) to give a certificate to the Commissioner in certain cases where a decision notice or enforcement notice has been issued. The effect of the certificate is that the public authority need not comply with the notice to which the certificate relates. A certificate may be issued only where the information concerned is exempt information (and thus, under section 2, a public interest test is relevant). A certificate must be given to the Commissioner no later than the twentieth working day following the effective date (subsection (2)). The accountable person may only issue such a certificate if he has on reasonable grounds formed the opinion that, in respect of the request to which the certificate relates, the authority has not failed to comply with its obligations. In practice this will mean that the accountable person has formed a view different from that of the Commissioner on the question of the public interest.

181.     Subsection (1)(a) provides that this section applies in relation to decision or enforcement notices served on Government departments, the National Assembly for Wales and any other public authority designated for this purpose by the Secretary of State. Any order to designate any such body is subject to the affirmative resolution procedure under section 82(2). Subsection (5) sets out the bodies or person the Secretary of State must consult before making such an order. Subsection (1)(b) provides that the section only applies to decision notices or enforcement notices relating to a failure to comply with the duty to confirm or deny that the authority holds the information requested, or the duty to disclose the information, where the only relevant exemptions are confirmed by any provision of Part II which does not confer absolute exemption.

182.     Subsection (3) provides that the accountable person must lay a copy of the certificate before each House of Parliament, or the appropriate devolved Assembly, as soon as is practicable after issuing the certificate.

183.     Subsection (4) defines the "effective date" in relation to a decision notice or enforcement notice, and it is the date from which the 20 working day period is counted.

184.     Subsection (6) provides that where the certificate relates to a decision notice the accountable person must also inform the applicant (who was the complainant for the purposes of section 50) of his reasons for the decision, at the same time as giving the certificate to the Commissioner, or as soon after that time as is reasonably practicable.

185.     Subsection (7) qualifies the previous subsection in that the accountable person is not obliged to provide information to the applicant, if, or to the extent that, it would involve the disclosure of exempt information.

186.     Subsection (8) defines "accountable person".

Section 54: Failure to comply with notice

187.     This section provides sanctions for an authority's failure to comply with a decision notice, information notice, or enforcement notice. Failure, in respect of information notices, includes knowingly or recklessly making false statements. The Commissioner may certify failure to the court. The court may inquire into the matter and, after hearing witnesses or any statement on behalf of the public authority, deal with the authority as if it had committed a contempt of court. In this section, the court means the High Court in England and Wales or Northern Ireland or the Court of Session in Scotland.

Section 55: Powers of entry and inspection

188.     This section introduces Schedule 3 which makes provision for the Commissioner's powers of entry and inspection. The powers are similar to those available to the Commissioner under the Data Protection Act 1998.

Section 56: No action against public authority

189.     This section ensures that the Act does not create any right to an injunction or to sue for damages for breach of statutory duty. It does not affect the Commissioner's powers to issue enforcement notices. The section does not oust the courts' judicial review jurisdiction.

Part V: Appeals

Section 57: Appeal against notices served under Part IV

190.     Subsections (1) and (2) of this section enable a complainant or a public authority to appeal to the Tribunal against a decision notice and a public authority to appeal to the Tribunal against an information notice or enforcement notice served on it.

191.     Subsection (3) relates to decision notices or enforcement notices about information which falls under section 66 (Decisions relating to certain transferred public records) and in respect of which, under subsections (3) and (4) of that section, the "responsible authority" (that is, generally, the originating authority) has determined that the public interest in maintaining the exemption outweighs the public interest in disclosing the information. This subsection provides that either the public authority holding the information or the responsible authority can appeal against a decision notice or enforcement notice requiring such a disclosure.

Section 58: Determination of appeals

192.     This section provides that appeals are to be allowed on only two grounds:

• that the notice against which the appeal was brought was not in accordance with the law; or

• where the notice involved the exercise of discretion by the Commissioner, that he should have acted differently.

193.     The Tribunal may review any facts on which the notice was based and if it allows the appeal it may substitute the notice with another one.

Section 59: Appeals from the decision of Tribunal

194.     This section enables any party to an appeal to appeal from a decision of the Tribunal to the courts on a point of law.

Section 60: Appeals against national security certificate

195.     Section 60 provides that the Commissioner or any person whose request for information is affected by the issue of a certificate under section 23 or 24 may appeal to the Tribunal against the certificate.

196.     Sections 23(2) and 24(3) provide that any question of whether exemption under section 23 (information supplied by, or relating to, bodies dealing with security matters) or section 24 (national security) applies falls to be resolved by reference to a decision of a Minister of the Crown who may issue a certificate to the effect that the information is exempt information.

197.     Subsections (2) and (3) provide that the Tribunal (which, under Schedule 6 to the Data Protection Act 1998 as amended by Schedule 4 to the Act, will be specially constituted for these appeals) may allow the appeal and quash the certificate if it finds, in the case of section 23(2) appeals, that the information was not exempt information or, in the case of section 24(3) appeals, that, applying the principles of judicial review, the Minister did not act reasonably in issuing the certificate.

198.     Subsections (4) and (5) relate to certificates issued by a public authority which identify information by means of a general description as allowed under section 24(3). Subsection (4) provides that, if a public authority claims that particular information is covered by the certificate, any other party to the proceedings may appeal to the Tribunal on the grounds that the certificate does not apply to that information. The Tribunal may determine that the certificate does not apply. If it does not so determine, the certificate applies.

Section 61: Appeal proceedings

199.     This section introduces Schedule 4 which amends Schedule 6 to the Data Protection Act 1998 relating to appeal proceedings. The effect of the amendments is that appeals under this Part are dealt with in accordance with the procedures in the amended Schedule 6 to the Data Protection Act 1998.