UK government departments may withhold information only when a provision of the Freedom of Information Act 2000 (FOIA) applies, or when a separate procedural refusal ground is met. The main protected areas include national security, defence, diplomacy, law enforcement, personal data, legal privilege, confidential information, commercial interests and information barred by another law. Some exemptions are absolute; others require a public-interest test before information can be withheld.
An exemption is not a blanket label for an entire subject. The department must apply the statutory conditions to the requested record, explain the basis for refusal unless doing so would reveal exempt information, and—where the exemption is qualified—show that maintaining it outweighs disclosure in the public interest.
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What the Freedom of Information Act allows departments to withhold
Part II of FOIA sets out the exemptions. They cover both the nature of the information and the harm that disclosure could cause. A request can therefore be refused because the information belongs to a protected class, because release would create a specified prejudice, or because another statute makes disclosure unlawful.
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The list below is a practical guide to the provisions. The exact wording and conditions in the current Act control each case; an exemption number by itself does not prove that withholding is lawful.
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Information already available or intended for publication
- Section 21 — information accessible by other means. A department may refuse where the requested information is reasonably accessible to the applicant elsewhere, such as an existing publication or public record. This is about access, not secrecy: the authority should identify how the information can be obtained where it can do so without exposing exempt material.
- Section 22 — information intended for future publication. Information held with a view to publication can be withheld when the statutory conditions are met. The intention to publish must be genuine and the timing and circumstances must satisfy the Act.
- Section 22A — research information. Research material may be exempt where the specific statutory conditions apply. It is not a general exemption for every internal research document.
Security, defence and national interests
- Section 23 — information supplied by or relating to security bodies. This protects information connected with the security organisations specified in the Act.
- Section 24 — national security. Information can be withheld when exemption is required to safeguard national security. The department must connect the material to that statutory purpose.
- Section 26 — defence. Defence information may be exempt where disclosure would meet the section’s conditions, including the protection of defence interests.
- Section 27 — international relations. This covers information whose disclosure could affect the United Kingdom’s relations with another state, an international organisation or an international court, subject to the provision’s tests.
- Section 28 — relations within the United Kingdom. Information may be withheld where the statutory conditions concerning relations between UK administrations or other UK authorities are met.
- Section 29 — the UK’s economic interests. Material can be exempt where disclosure would prejudice specified economic interests of the United Kingdom or a part of it.
Investigations, justice and oversight
- Section 30 — investigations and proceedings. This protects information held for specified investigations, criminal proceedings and related functions. It is not an automatic shield for every investigative file.
- Section 31 — law enforcement. The exemption can cover information whose disclosure would prejudice law-enforcement purposes, such as preventing or detecting crime, administering justice or collecting taxes and duties, when the statutory test is satisfied.
- Section 32 — court records. Certain court, tribunal and inquiry records are exempt under the detailed conditions in this section.
- Section 33 — audit functions. Information may be withheld when disclosure would prejudice the functions of specified audit bodies.
- Section 34 — parliamentary privilege. The provision protects information where disclosure would infringe parliamentary privilege.
Policy-making and public administration
- Section 35 — formulation of government policy. This addresses information relating to the formulation or development of government policy, including specified ministerial and Cabinet material, subject to the statutory scope and public-interest requirements.
- Section 36 — effective conduct of public affairs. A qualified exemption can apply where disclosure would prejudice the effective conduct of public affairs and the required opinion and procedural conditions are met. Section 36 has a limited absolute element: information held by either House of Parliament is treated differently from information held by a government department.
Royal communications, safety and environmental information
- Section 37 — communications with the Sovereign and other royal matters. The section covers specified communications with the Sovereign and other members of the Royal Family or household, as well as certain honours information. Its different limbs have different legal treatment.
- Section 38 — health and safety. Information can be withheld where disclosure would endanger an individual’s physical or mental health or safety and the statutory conditions are met.
- Section 39 — environmental information. This section directs environmental requests into the Environmental Information Regulations 2004 (EIR). Pollution, emissions, land, water, waste, energy and other material meeting the EIR definition should normally be assessed under that regime rather than by applying the FOIA list mechanically.
Personal, confidential, privileged and commercial material
- Section 40 — personal information. Personal data may be withheld where disclosure would breach data-protection rules. The section is partly absolute and partly qualified, so the legal analysis depends on whose data are involved and which subsection applies.
- Section 41 — information provided in confidence. Information supplied in circumstances creating an actionable obligation of confidence can be exempt where disclosure would constitute an actionable breach. This is an absolute exemption, although the underlying confidentiality conditions still have to be established.
- Section 42 — legal professional privilege. Confidential communications covered by legal professional privilege may be withheld. The privilege must apply to the particular communication; a document is not protected merely because lawyers were involved somewhere in the matter.
- Section 43 — commercial interests. Information can be exempt where disclosure would prejudice commercial interests, including those of the public authority or another person. The department must identify a real connection between release and the specified commercial harm.
- Section 44 — prohibitions on disclosure. This covers information whose disclosure is prohibited by another enactment, is incompatible with an obligation under European Union law where the statutory condition applies, or would constitute contempt of court.
Section 25: certificates, not a separate subject exemption
Section 25 is supplementary to sections 23 and 24. It concerns certificates associated with those national-security exemptions; it is not a standalone category that lets a department withhold any information it chooses.
Absolute and qualified exemptions: why the distinction matters
FOIA section 2(3) identifies the exemptions that are absolute, either wholly or for a defined part of a provision. Absolute exemptions include section 21 (already accessible information), section 23 (specified security bodies), section 32 (court records), section 34 (parliamentary privilege), section 41 (information provided in confidence) and section 44 (statutory prohibitions). Section 36 is absolute only for information held by either House of Parliament, and section 40 is absolute only for specified personal-information cases. It is therefore incorrect to describe every section 36 or section 40 refusal as absolute.
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For an absolute exemption, the authority does not balance disclosure against the public interest under FOIA’s qualified-exemption test once the exemption’s own conditions are met. The authority must still identify the correct provision and apply its legal conditions.
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Prejudice must be specific and causally explained
Many qualified exemptions are prejudice-based. A department should identify the harm it says would result, explain how disclosure could cause that harm, and show why the risk is sufficiently real under the statutory wording. A generic assertion that release “could cause harm” is not, by itself, a complete analysis. Older departmental guidance can help explain the concepts, but the current Act and current guidance from the Information Commissioner’s Office govern an individual decision.
| Question | Absolute exemption | Qualified exemption |
|---|---|---|
| What must the department establish? | The exemption’s own statutory conditions. | The exemption’s conditions, followed by the public-interest test. |
| Is disclosure weighed against withholding? | Not under the qualified-exemption public-interest test. | Yes. Maintaining the exemption must outweigh disclosure. |
| Typical examples | Sections 21, 23, 32, 34, 41 and 44; specified parts of sections 36 and 40. | Many national-security, policy, law-enforcement, safety and commercial provisions, including sections 24, 26–31, 35, 36 and 38. |
| Can the exact subsection change the result? | Yes. Section 40 and section 36 contain partial or specially treated elements. | Yes. Each provision has its own threshold and public-interest considerations. |
Refusal grounds that are not information exemptions
FOIA also permits a department to refuse a request for procedural reasons. These are not additional categories of protected information and should not be presented as Part II exemptions.
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- Cost limit: a request may be refused when complying would exceed the statutory cost limit. The issue is the estimated cost of locating, retrieving and extracting information, not whether the subject is sensitive.
- Vexatious requests: a request may be refused when it meets the legal test for vexatiousness. The label is not interchangeable with “awkward” or “critical”.
- Repeated requests: a substantially repeated request can be refused in the circumstances specified by the Act.
A refusal notice should state the statutory basis, explain the decision to the extent the Act permits, and address internal-review rights or other required information. There are limits: explaining an exemption may itself reveal the information that the exemption protects.
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FOIA normally requires a public authority to say whether it holds requested information. In specified circumstances, however, a provision allows a department to refuse even to confirm or deny whether the information exists. This is distinct from simply withholding documents after confirming that they are held. The authority must rely on a provision that permits a neither-confirm-nor-deny response and apply its statutory conditions; it cannot use the response merely to avoid an inconvenient disclosure.
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Environmental requests follow a different route
Section 39 means that environmental information is generally handled under the EIR. A request about pollution, emissions, land, water, waste, energy, radiation, environmental policies or factors affecting human health may fall within the EIR definition. The practical consequence is important: the authority must first decide which regime applies, then use the exemptions and public-interest rules of that regime. Applying a FOIA section automatically because the requester used the words “freedom of information” can put the analysis on the wrong legal footing.
How to read a department’s refusal
- Identify the regime. Check whether the authority treated the request under FOIA or the EIR, and whether the subject is environmental.
- Separate refusal types. Determine whether the department relied on an exemption, a cost or conduct provision, a repeated-request rule, or a neither-confirm-nor-deny response.
- Check the section and subsection. A reference to section 40, section 36 or section 37 is incomplete without knowing which part of the provision is being used.
- For a qualified exemption, look for both stages. The notice should show why the exemption is engaged and why the public interest favours maintaining it.
- Look for a harm explanation. In a prejudice-based case, the notice should connect disclosure to a defined harm rather than rely on a bare assertion.
- Check partial disclosure. If only part of a document is exempt, non-exempt information should be considered for release, with redactions limited to what the law protects.
- Record the review route. Keep the refusal notice and follow the department’s stated internal-review process; the notice’s explanation is the starting point for challenging an overbroad application.
What an exemption does not prove
A refusal in one case does not establish that every record on the same topic can be withheld. The result depends on the wording of the request, the particular record, the provision relied upon, the evidence of harm, the public-interest balance and the timing of the decision. A department may disclose some material, redact only exempt passages, or reach a different result when circumstances change.
There is no reliable, current general statistic in the official material considered here showing how often UK departments use each individual exemption. Treat claims about an exemption being “usually” or “rarely” used cautiously unless they identify a defined department, period and dataset.
The governing principle and its limits
The Social Security Regulation and Oversight Board (SSRO) states in its published procedure: “The fundamental principle underpinning the FOI Act is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to.” That is institutional guidance from one authority, not a universal quotation attributed to a named official. In practice, the Act turns that principle into a set of specific tests: defined exemptions, procedural safeguards and, for qualified provisions, a documented public-interest balance.
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